Brien v Palmby

[1999] NSWCA 355

CITATION:	Brien v Palmby [1999] NSWCA 355
FILE NUMBER(S):	CA 40034/98
HEARING DATE(S):	2 June 1999
JUDGMENT DATE:	29 September 1999
PARTIES :	Kenneth Claude BRIEN & Sally Anne BRIEN t/as A-GRADE TYRES & BATTERY SERVICE (ARMIDALE) v David Eric PALMBY
JUDGMENT OF:	Mason P at 1; Meagher JA at 14

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	17/95 at Armidale
LOWER COURT JUDICIAL OFFICER:	MOORE DCJ

COUNSEL:	Appellant: D. Fagan SC/G.B. Evans Respondent: P. Menzies QC/D.Jenkins
SOLICITORS:	Appellant: McMahons Respondent: Watson, McNamara & Watt.
CATCHWORDS:	negligence - assessment of damages - quantum and apportionment of damages - Motor Accidents Act 1988 - novus actus interveniens
ACTS CITED:	Motor Accidents Act, 1988.
CASES CITED:	Kavanagh v Akhtar (1998) 45 NSWLR 588, Robinson v Riley [1971] 1 NSWLR 403.
DECISION:	Appeal dismissed with costs.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA No. 40037 of 1998
DC No. (Armidale) 1995

MASON P
MEAGHER JA

Wednesday, September 29 1999.

BRIEN & Anor v PALMBY

NEGLIGENCE - ASSESSMENT OF DAMAGES - QUANTUM AND APPORTIONMENT OF DAMAGES - MOTOR ACCIDENTS ACT 1988, SECTION (79)3-NOVUS ACTUS INTERVENIENS

A spare parts sales representative took his Land Cruiser vehicle in for a service. This service was performed negligently. As a result the plaintiff was involved in a car accident on 26 November 1991. He suffered quite painful injuries to the wrist and spinal regions.
The pain worsened causing the plaintiff to mention to his employer he intended on seeking medical advice. Upon learning of the plaintiff’s intentions the employer then sacked the plaintiff.
The plaintiff was subsequently involved in another car accident on 6 October 1992. This presented him with a new set of injuries as well as aggravating the injuries caused by the first accident.
The plaintiff took action and was granted judgment against the two defendants, namely the proprietors of the A-Grade Tyres and Battery Service (Armidale) and Richard Alexander Gardiner, the driver involved in the second accident. General damages were awarded to the sum of $123,500., plus damages for future economic loss assessed at $462 per week for twenty years. These damages were apportioned five-sevenths to the first defendants and two-sevenths to the second defendant.
On appeal by the first defendants it was argued that his Honour erred in his assessment of damages by application of S79(3) of the Motor Accidents Act 1988 and also in the quantum of damages sought. It was submitted that his Honour erred in his apportionment of damages under the Act and that his Honour failed to consider any novus actus interveniens between the first and the second accidents in assessing damages. Held: Although the approach taken by the trial judge was unorthodox it was open to him to award the highest quantum of damages under the Act, and to apportion damages five-sevenths to the first defendants and two-sevenths to the second defendant. The termination of employment plus the second accident did not constitute any novus actus interveniens, thus it was open to the trial judge to apportion most of the damages to the first defendants. ORDERS 1. Appeal dismissed with costs. THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL CA: 40034/98 MASON P
MEAGHER JA

Wednesday 29 September 1999

Kenneth Claude BRIEN and Sally Anne BRIEN t/as A-GRADE TYRES & BATTERY SERVICE (ARMIDALE) v David Eric PALMBY

JUDGMENT

1 MASON P: I have had the advantage of reading the reasons of Meagher JA with which I generally agree. 2 The trial judge’s methodology was unorthodox, but it does not follow that the appeal should be upheld in an appeal by way of rehearing in which both parties shun a new trial. Some errors were probably in the appellant’s favour (eg using Motor Accidents Act figures as a starting point for general damages). In these circumstances attention should be focussed upon the “bottom line”, making such use of the trial judge’s advantage and reasoning as is practicable. 3 The principal attack was directed at the conclusion that the first accident (in which the respondents were the tortfeasors) was 5/7 responsible for the permanently unemployable state in which the respondent was left after the second accident. In my view this conclusion was well open. Medical evidence supported the causal potency of the first accident (eg AB 126). So too did the respondent’s evidence, which was accepted, including as it did evidence of major symptoms before the second accident. The objective circumstances of the two accidents also point in the same direction. 4 There was certainly no error in the conclusion that the sacking of the respondent was not a novus actus interveniens. This response may have been unreasonable from the employer’s point of view, but it was reasonably foreseeable as between the appellants and the respondent (cf Kavanagh v Akhtar (1998) 45 NSWLR 588 at 597-9). 5 The finding of effective total incapacity after the second accident was, in my view, clearly open to his Honour. For the reasons summarised above, so too was the impressionistic apportionment of causal potency as between the two accidents. 6 Much time was wasted in the appeal because there was no minute of the final judgment entered in the District Court and great uncertainty about the manner in which damages were calculated. These were matters which the appellant’s solicitor should have attended to in preparation of the appeal, along with properly indexed appeal books. 7 It appeared for some time that the damages awarded may have included lost wages prior to the dismissal on 22 April 1992. However, it was ultimately established to my satisfaction that it did not. But the verdict did allow for lost wages in full between then and 6 October 1992, the date of the second accident. The appellants submit that only a proportion of lost wages should have been allowed, in the light of the 5/7 attribution of the causal potency of the first accident upon the ultimate ruin of the respondent’s earning capacity. But there is a fallacy in this, because the respondent was in fact out of work in consequence of his dismissal. That was causally related to the first accident and there is nothing to suggest that the respondent failed to mitigate his loss during the six months that elapsed before the second accident. He was seriously injured on any account, he had been dismissed, and jobs were probably scarce in the country town where he lived. 8 The one matter which has troubled me is the award of $123,500 for general damages stemming from the first accident. Damages for non-economic loss were not capped by the Motor Accidents Act. His Honour was aware of this, but he chose to use the statutory benchmark as a starting point. He assessed general damages on the basis of 5/7 of the figure derived from the Motor Accidents Act for 70% of a most serious case. I have already indicated that this was an error in the appellants’ favour. 9 To treat the injuries stemming from the two accidents as being, in combination, in the 70% field was high, notwithstanding the extensive and permanent injuries suffered. The respondent was aged 34 at the time of the two accidents. 10 On the other hand, the prognoses of Dr Lee (CB 151) and Dr Lawson (CB 157), which his Honour accepted (RB 42), are very guarded. They speak of significant and permanent limitations in the lower back, cervical spine and right leg, chronic neck and lower back pain, resultant irritability, social withdrawal and ongoing depression (fortunately not now as extreme as it once was). Acupuncture, counselling and the use of a TENS machine provide but partial relief. 11 In the end I share Meagher JA’s view that the figure is high but within range. 12 For these reasons the verdict, taken as a whole, was not such as to attract appellate review (Robinson v Riley [1971] 1 NSWLR 403). 13 I would dismiss the appeal with costs. 14 MEAGHER JA: The hapless plaintiff, the respondent David Eric Palmby, suffered, relevantly, two accidents, each of which caused him injury. The first was caused by the negligence of the current appellants, Mr and Mrs Brien, in repairing one of the wheels of his motor vehicle. It took place on 26 November 1991. The second was caused by the negligence of a Mr R.A. Gardiner in driving his motor vehicle. It took place on 6 October 1992. Both accidents caused injuries of considerable severity. Mr Palmby sued both the Briens and Mr Gardiner, and the actions were heard together by Moore DCJ. He recovered verdicts in both actions. Mr Gardiner does not appeal against his verdict. The Briens do. The verdict against them was in the sum of $490,116.79. 15 His Honour believed the plaintiff on every issue. He also accepted all his medical evidence. I shall summarize some of the facts found by his Honour (none of which were attacked); immediately after the accident, the plaintiff was severely shaken and his neck began hurting. He felt pain on the right side of his left wrist and in his right knee. All those injuries persisted, and still do. His emotional distress was so great that he thought he would die, leading to a state of “absolute depression”, in the course of which he held a gun to his head, seriously contemplating suicide. He took to pain killers, but they were of no use. 16 At first, and for four or five months after the accident, the plaintiff resumed his pre-accident job, which involved driving a motor vehicle. He found that he was unable to do his work properly. He could not turn his head while driving without suffering severe neck pain, he had severe throbbing headaches which lasted for days at a time, he had low back pain accompanied by numbness and cramping in his buttocks, radiating down his legs, he had radiating pain from the cervical injury to his right shoulder leading to paraestheria in all the fingers of his hand. 17 Not surprisingly, he decided to consult a doctor, a step which he had hitherto been reluctant to take. He did so, informing his employer beforehand. That worthy responded by sacking him. His Honour found that this was a silly act committed by an irrational man. It is difficult to disagree. But, its legal significance was that it enabled the appellant to launch an argument that it was a nova causa interveniens. It was not. A reasonable man in the appellants’ position would have realised that such a consequence was foreseeable, it was just the sort of thing an irrational employer would do. After all, a plaintiff with an unbalanced employer is in exactly the same position as a plaintiff with an eggshell skull. 18   One component of the verdict was a figure for general damages of $123,500. This was arrived at in the following way: his Honour considered that if there had been only one accident, and that accident had been one to which the Motor Accidents Act applied, he would hold that the plaintiff would have been entitled to a sum by way of non-economic loss of 70% of a most serious case. He took that amount and divided it into seven parts, attributing five parts to the first case as general damages and two parts as non-economic loss in the second case. The appellants have made a vigorous attack on his Honour for so doing. In the first place, they pointed out that the Motor Vehicles Act applied to the second accident (where non-economic loss is required to be assessed), but not to the first, which was governed by the principles of the general law (where a figure for general damages had to be assessed). In the second place, it was not a case where the injuries incurred in the second accident “submerged” or “swamped” those in the first accident. All this is true, but is not in my mind decisive. The methodology his Honour adopted may be unorthodox, and probably was unwise, but it is one way of going about things, and has not been shown in the present case to yield a wrong result. Moreover, whilst it is true there was no “submergence” involved, and that the second accident had some discrete consequences apart from the first accident (for example, serious injury to the right wrist), nonetheless, there was a considerable element of merger. To a large extent the second accident aggravated the disabilities caused by the first accident. In these circumstances it is no easy matter to attribute any particular consequence to the original injury rather than to its aggravation. This is especially so in cases like the present where the queue of doctors relied upon by either side (none of whom, as is now customary, were cross-examined), did not address their minds to the problem. 19   Bearing all of this in mind, I can see no reason to doubt the justice of his Honour’s conclusion that most of the plaintiff’s injuries should be attributed to the first accident. 20   The amount awarded for general damages is also attacked. It was $123,500. It should have been, according to the appellant, no more than $30,000. This attack should, in my view, be repelled. Indeed, insofar as it depends only on the proposition that the plaintiff’s sacking was a nova causa it is absurd. Bearing in mind the seriousness of the physical injuries undoubtedly caused by the first accident, and even more the psychological injuries, and conceding that the figure of $123,500 is towards the top of the range, I think it is a figure to which his Honour is entitled to come. 21   The rest of the appellant’s submissions are, I think, covered by what I have already said. The order which I think should be made is that the appeal be dismissed with costs;