Re : George Wilfred Thomas Donnelly v Jennifer Margaret Baker [1986] FCA 109 (11 April 1986)

FEDERAL COURT OF AUSTRALIA

Re : GEORGE WILFRED THOMAS DONNELLY
And: JENNIFER MARGARET BAKER
No. ACT G51 of 1985
Damages

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Evatt J.
Gallop J.
Beaumont J.

CATCHWORDS

Damages - appeal against quantum of damages - role of appellate court - no appellable error demonstrated.

Davies v. Duffryn Associated Collieries Limited (1942) AC 601

Miller v. Jennings [1954] HCA 65; (1954) 92 CLR 190

Gamser v. The Nominal Defendant [1977] HCA 7; (1976-77) 136 CLR 145

Paul and Another v. Rendell (1981) 34 ALR 569

Hodges v. Frost (1984) 53 ALR 373

HEARING

SYDNEY
11:4:1986

ORDER

The appeal is dismissed with costs.

NOTE: Settlement and entry or orders is dealt

with by Order 36 of the Federal Court Rules.

DECISION

In my view this appeal should be dismissed for the reasons for judgment given by Gallop J with which I agree.

This is an appeal against quantum of an award of damages in the sum of $224,895 in an action for damages for personal injuries brought by the appellant in the Supreme Court of the Australian Capital Territory as a result of a motor vehicle accident on 2 April 1983. The trial of the action commenced before the Chief Justice of the Supreme Court on 24 June 1985 and concluded on 27 June 1985. The Chief Justice delivered his reserved decision on 1 August 1985.

2. The individual assessments which his Honour made related to the following specific heads :

$ $
Pain and suffering etc. 25,000
Past loss of earnings 32,360
Future Loss of earning capacity 119,500
Past out of pockets 8,481
Past medication 2,000
Water bed 700
Tax paid on workers' compensation 7,777
Past domestic services 8,000
Future medical expenses 1,000
Future medication expenses 5,000
Future domestic services 8,000
Future chiropractic services 1,000

Interest: on past
general damages 17,500 4,080
wage loss
less worker's compensation 6,780 1,542
medication 2,000 455
--------
$224,895
--------

3. The assessments appealed against were those listed below with consequential adjustments to those heads in respect of interest thereon in the event of this court substituting some other figure for that assessed by the trial judge.

$ $
Pain and suffering etc. 25,000
Past loss of earnings 32,360
Future loss of earning capacity 119,500
Future medication expenses 5,000
Future domestic services 8,000
Future chiropractic services 1,000

4. Before this court interferes with an award of damages it should be satisfied that the trial judge acted on a wrong principle of law or misapprehended the facts or, for these or for other reasons, made a wholly erroneous estimate of the damage suffered. It is not enough that there is a balance of opinion or preference. The scale must go down heavily against the figure attacked if the appellate court is to interfere either on the ground of excess or insufficiency (Davies v. Duffryn Associated Collieries Limited (1942) AC 601 per Lord Wright at p 616-7, cited with approval by Dixon CJ and Kitto J. in their joint judgment in Miller v. Jennings [1954] HCA 65; (1954) 92 CLR 190 at 195-6, and by Barwick CJ in Gamser v. The Nominal Defendant [1977] HCA 7; (1976-77) 136 CLR 145 at 148). Where an attack is made on the amount of damages this court must look to the findings of fact of the trial judge. These principles should be steadily born in mind by this court in appeals of this nature.

5. The appellant was born on 27 December 1946, thus he was a little over 36 years of age at the date of the subject accident and 38 1/2 years of age at the date of the commencement of the trial. The events giving rise to the injuries sustained by the appellant, as found by the trial judge, were that he hit his head on the door jamb of his vehicle and also struck his right shoulder, right elbow and right knee. There was no fracture or dislocation in the right shoulder blade but a diagnosis of right subluxation of the shoulder and a brachial plexus traction injury in the cervical spine was made.

6. The injuries and disabilities as found by the trial judge were traumatic labyrinthitis with a 13% residual loss of hearing in the right ear, concussion, fracture of the right sixth rib, whiplash-type neck injury, nerve lesion in the right thigh, and nerve lesion in the right elbow involving the right ulnar nerve. The appellant has continued to experience pain in the right shoulder, neck and back and developed pain in other areas such as the right thigh and right knee. He now usually walks with the aid of a stick. His physical condition has been largely overtaken by personality and psychological factors and it is these factors which were a very prominent issue in the assessment of appropriate damages. His Honour found that the appellant suffers from no recognisable form of mental illness and has not suffered any brain damage.

7. In a very well presented argument, counsel for the appellant submitted that the trial judge had made errors of fact in various respects and that those errors had caused a wholly erroneous estimate of the damage suffered by the appellant.

8. First, it was submitted that his Honour had fallen into error in his assessment of damages for loss of earning capacity. The amount assessed by his Honour was $119,500. His Honour said that he accepted the view of Dr Knox, a consultant psychiatrist, that the appellant's severe degree of psychiatric impairment was such that he should be regarded as unfit for employment in the general sense for a period of three years into the future. His Honour found that even in that period the appellant would retain some degree of earning capacity in that he would continue to work at a garage doing books of account and that his activities at the school canteen and the Bush Fire Brigade, although not actually income generating, were indicative of a residual earning capacity.

9. It was submitted that his Honour had misapprehended the evidence of Dr Knox in his finding that the appellant's psychiatric impairment would incapacitate him for employment for a period of three years into the future.

10. Dr Knox had examined the appellant at the request of his solicitors on 26 March 1985 and his report of 24 April 1985 was in evidence. At the end of that report Dr Knox offered the following opinion:

"Your client's long term prognosis remains in doubt.
While I expect your client to remain incapacitated for
a period of several further years, there is some
prospect that he could resume a state of health
allowing him to undertake employment after a period of
years. This will depend on both your client's physical
and psychiatric rehabilitation."

11. Dr Knox also gave oral evidence on behalf of the appellant. He was asked to elaborate upon his report. He expressed the opinion that the appellant was likely to continue "with quite a severe degree of psychiatric impairment for a period of two or three years, probably longer . . . and (would) remain with some chronic psychiatric difficulty flowing out of his underlying personality, but there is scope for some degree of improvement in the longer term perhaps".

12. Having read the medical reports and the evidence of Dr Knox, I am not persuaded that the trial judge made any error in his synoptic expression of the effect of that evidence. It has to be borne in mind that at the date of trial the appellant was actually engaged in some work at a service station and endeavouring to improve his knowledge and capacity in that field of work. One also has to bear in mind that the trial judge had to make a start somewhere in calculating fair and reasonable compensation for the appellant's loss of earning capacity. There was other evidence before his Honour that the appellant would eventually return to employment. The appellant was examined by Professor R.F. Jones, Director of the Department of Rehabilitation Medicine at Prince Henry and Prince of Wales Hospitals, on 28 May 1985 on behalf of the defendant. In his report of 14 June 1985 Professor Jones said in relation to the appellant:

"Much of his posturing at the present time is due to
exaggeration of his symptoms and the motivation for
this exaggeration is suspect. I believe that he is
fully intent on returning to work and intends to manage
a service station."

And later in the report:

". . . from a purely physical point of view I regard him
as eminently employable, and that he has worked himself
into a situation where he regards himself as being
unable to work as a bus driver and in view of his
stated inability to return to this type of work, then
one would direct him toward clerical duties or small
business management."

13. Professor Jones gave evidence at the trial and he adhered to the contents of his report. In cross-examination he said that he would have great difficulty accepting that the appellant was a trier and that the appellant seemed to be emphasising his disability rather than minimising it. He said that the appellant should be assisted in passing his clerical assistant examination and then either supported into finding employment through the Commonwealth Public Service, or giving him skills in small business because that is obviously the way he wishes to go. Furthermore, he said that he believed that the stress of litigation was a factor in his problem.

14. Dr Alex Gilandas, a clinical psychologist of the Department of Psychiatry, University of Sydney, also gave evidence on behalf of the defendant. He had made a neuropsychological assessment of the appellant on 19 June 1985 and his report was in evidence. He concluded that the appellant was suffering from post-traumatic syndrome which can reasonably be attributed to his motor vehicle accident. In his report and in his evidence he assessed the appellant's intellectual functioning as falling within the bright normal range, and that there had been no change intellectually as a result of the accident.

15. Having regard to all the evidence at the trial it was, in my view, both fair and reasonable to allow the appellant compensation on the basis of total incapacity for a period of three years and partial incapacity thereafter. Accordingly, I would reject the first submission made on behalf of the appellant.

16. Counsel for the appellant further submitted that the trial judge was wrong in his allowance of the amount of overtime which the appellant had been working as a bus driver prior to the subject accident. His Honour said that he was not prepared to assess loss of earning capacity either in the past or for the future on the basis that overtime of 22 1/2 hours per week in the service station would have been available throughout because he was somewhat sceptical of the evidence of Mr Wignall, the service station proprietor, which seemed to his Honour unduly weighted in favour of the appellant.

17. It was further submitted that activity at the school canteen and in the Bush Fire Brigade were not indicative of residual earning capacity as his Honour had found.

18. Finally, in relation to loss of earning capacity it was submitted that his Honour's finding of fact that Dr Corry's evidence that the appellant's chances of getting suitable work through one of the rehabilitation services was less than 50% carried an implication that there must be some chance of getting work was wrong on the evidence and should not have been taken into account in the assessment under this head.

19. Dr Corry, Consultant in Rehabilitation Medicine, examined the appellant on 25 May 1984 and 29 March 1985. His reports of 23 October 1984 and 6 June 1985 were in evidence and Dr Corry was also called to give evidence on behalf of the appellant. In the final paragraph of his report of 6 June 1985 Dr Corry expressed the opinion that the appellant's present severe symptoms were likely to continue until he was able to reconstruct some meaningful existence for himself. He said the appellant's own recognition of this was reflected in his search for alternative employment, that the appellant should be assisted through a rehabilitation program and that he should be referred to the Australian Government Rehabilitation Service for assistance.

20. In his evidence Dr Corry outlined the difficulties facing the appellant in obtaining part-time employment. He said that if the appellant attended the Commonwealth Rehabilitation Service his prospects of success in being placed in work would be something less than 50%.

21. For the purpose of calculating loss of earning capacity in the future his Honour accepted the loss of earnings as a bus driver admitted in evidence in the form of a schedule of wage loss and, allowing for 5 1/2 hours per week overtime, fixed upon a figure of $250 per week net for a period of three years, resulting in a figure of $37,500. For the future beyond those three years he assessed the appellant's loss of earning capacity at $100 per week for 24 years, applied a discount rate of 3%, yielding a figure of approximately $89,700 which he reduced by 20% for contingencies, leaving about $72,500. He acknowledged that the discount for contingencies was a relatively high one based upon the strong possibility that the appellant's way of life and personality were such that he stood to run into psychological problems in any event even if he had not been injured. He also took into account that the commencement of the actual loss was postponed for three years. He then incorporated into the conglomeration of prophecies that the appellant was likely to earn something for some time from employment outside his activities as a bus driver. He adopted the sum of $112.50 per week which the appellant was earning at the service station at the time of his injuries and accordingly allowed $2,700 up to 16 September 1983. His Honour did not appear to allow any amount for the period 17 September 1983 to 31 December 1984. (I shall return to this aspect of his Honour's assessment in dealing with past economic loss.) For the period 1 January 1984 to the date of trial his Honour did allow a loss of $50 per week, making a further $4,000 in respect of past loss and a total of $6,700 for loss of earnings for work other than as a bus driver from the date of the accident to the date of judgment. For the future he allowed $50 per week for a period of five years and discounted to a lump sum of $10,000. His calculations, therefore, for loss of future earning capacity were based upon the aggregate of the sum of $37,500 for the three year period and the discounted figure of $72,500, making a total of $110,000, and $10,000 for loss of earnings from work other than as a bus driver from the date of judgment for a period of five years. There appears to me to have been a small mathematical error in that the sum of $119,500 should have read $120,000.

22. Counsel for the appellant in his turn submitted an alternative method of calculation of future economic loss based on the circumstances which he contended existed at the date of trial. He submitted that the correct approach was to regard the appellant as totally and permanently incapacitated as a bus driver. Adopting that approach, the correct calculation of the appellant's loss of earning capacity as a bus driver is, on the evidence, 27 years at $283.32 per week, using a discount figure of 3%, yielding $275,103.72 less 15% for contingencies, i.e. $41,265.60, giving a correct award of $233,838 in lieu of the sum of $110,000 in fact awarded in respect of loss of earning capacity as a bus driver.

23. In relation to the loss of earning capacity other than as a bus driver, counsel contended that the correct calculation is, on the evidence, 5 years at $112.50 per week namely $27,281.25, less $5,200 (being $20 per week for 5 years for free petrol and motor vehicle services), giving $22,081 which, discounted by 15% for contingencies, gives an end result of $18,769 in lieu of the $10,000 awarded for loss of future earning capacity other than as a bus driver.

24. I am not persuaded that the trial judge made any error in his findings of fact upon which he based his calculations for loss of earning capacity. One must bear in mind and, indeed, keep in the forefront of one's consideration of a trial judge's assessment of damages, that the trial judge had the advantage of seeing and hearing not only the appellant, but also the many medical experts who were called to give evidence, together with all the other evidence in the case such as video films. Furthermore, the trial judge had to make some intuitive assessment of a proper sum to compensate the appellant for loss of earning capacity. He did that and applied the proper actuarial calculations to arrive at a capital sum which he regarded as fair compensation for the appellant, no doubt bearing in mind that actuarial calculations are no more than rough and ready guides to what is proper compensation for future economic loss, particularly where there is a residual earning capacity.

25. As the Judicial Committee of the Privy Council observed in Paul and Another v. Rendell (1981) 34 ALR 569 per Lord Diplock at p 571, the assessment of damages in actions for personal injuries is not a science. An assessment of future economic loss involves a double exercise in the art of prophesying not only what the future holds for the injured plaintiff but also what the future would have held for him if he had not been injured.

26. In my view the trial judge carefully approached the assessment of damages for loss of earning capacity, made proper findings of fact and the appropriate assumptions based upon those facts and arrived at a figure well within the range of damages under this head. I am further of the opinion that to have assessed damages on the basis of total loss of earning capacity for the rest of the appellant's working life as contended for by counsel for the appellant would have been wholly erroneous on the evidence. I would only add that the mathematical error of $500 should be ignored for the purposes of this appeal.

27. It was next submitted that the trial judge's assessment of $32,360 for past loss of earnings was wrong. For this purpose his Honour had recourse to the evidence showing the loss of earnings as a bus driver between the time of injury and the date of trial without overtime as $27,645 and with 5 1/2 hours per week overtime, as $31,004. He allowed $30,000, declining to assume that the plaintiff would have worked all the overtime available during that period. He then took into account the plaintiff's admitted receipt of $4,340 during that period while working as a clerk in the Public Service, deducted that sum from the $30,000, yielding a figure of $25,660, to which he added $2,700 for loss of earnings at the service station from the date of injury until 16 September 1983 and a further sum of $4,000 for the period 1 January 1984 to the date of trial, yielding a total figure of $32,360.

28. It is not clear, either from his Honour's reasons for judgment or otherwise, why his Honour did not allow anything for loss of earnings at the service station between 16 September 1983 and 1 January 1984. The appropriate amount was on the evidence approximately $604 less $72.20 received, namely $532.80. Counsel for the respondent conceded that the failure to allow some amount for the period 16 September 1983 to 1 January 1984 must have been an oversight. Accepting that to be so, this court should not interfere by tinkering with this head of damage. It would have been quite appropriate for his Honour to take account of the vicissitudes of life between the date of injury and the date of trial and the amount involved is too inconsequential in a total award of $224,985 for this court to interfere. In my opinion the assessment of $32,360 for past loss of earning capacity was appropriate and reasonable in all the circumstances.

29. The next submission on behalf of the appellant was that the sum of $25,000 for general damages was on its face appellably low and should have been in the order of $40,000. The assessment of damages for pain and suffering, loss of enjoyment of life past and future, inconvenience and all the other matters that are required to be taken into account under the head of general damages is largely an intuitive exercise. Looked at in the range of damages which might have been awarded under this head and having due regard to the appellant's injuries, treatment and disabilities, I am not persuaded that any error has been demonstrated.

30. It was next submitted that in his allowance of $1,000 for future chiropractic services and $5,000 for future medication expenses, his Honour had taken an erroneous view of Dr Knox's opinion of the appellant's likely future employability. For the reasons which I have already indicated, I reject the proposition that his Honour made any error in his assessment of Dr Knox's evidence and accordingly would not interfere with his Honour's assessments under these heads.

31. The same may be said in relation to the last submission of counsel for the appellant that the sum of $8,000 awarded by his Honour for future domestic services was wrong. In relation to this claim his Honour found that the evidence of the appellant's wife did not fully justify the claim as made of full time care and assistance for periods of several weeks following the appellant's various confinements to hospital together with an allowance at the rate of 2 1/2 hours per day at other times and into the future. He found that her evidence did not justify the claim made apart from the periods after confinement to hospital.

32. Taking into account current domestic rates and applying the principles enunciated in Hodges v. Frost (1984) 53 ALR 373, his Honour allowed 5 hours per day for 20 weeks in the past, making a round total of $4,000 and for the rest of the period in the past allowed $40 per week, rounded that total out to $4,000 and allowed a total of $8,000 for past domestic services. That assessment was not the subject of any submission on the hearing of the appeal. His Honour then applied the figure of $40 per week for a period of three years into the future undiscounted, rounded that figure to $6,000 and added a lump sum of $2,000 for the future after that period of three years, making a total of $8,000 for the future.

33. The submission on behalf of the appellant was that the sum of $40 per week should have been allowed for 27 years discounted. Likewise, I would reject that submission for the same reasons, namely, that the trial judge does not appear to have made any error in his assessment of the future incapacity of the appellant and hence his need for care and assistance from his wife.

34. Finally, it is desirable to look at the total sum of $224,895 for which judgment was entered in the appellant's favour. Looked at as a global sum, that figure in my opinion represents a fair and proper award of damages for the injuries sustained by the appellant and their consequences. Furthermore, it accords with the general level of awards of damages for personal injuries in the Australian Capital Territory.

35. I would dismiss the appeal with costs.

I agree with the Reasons of Gallop J. and with the order proposed.