Cahill v Saunders No. Scciv-01-432
[2001] SASC 361
•9 November 2001
CAHILL V SAUNDERS
[2001] SASC 361
Full Court: Lander, Bleby & Wicks JJ
LANDER J. The appellant was the plaintiff in proceedings in the District Court for a claim for personal injuries arising out of a motor vehicle accident which occurred on 7 August 1996. The defendant admitted liability and the matter proceeded as an assessment of damages only. An award was made in favour of the plaintiff, damages being assessed upon the following basis:
Non Economic Loss $15,200
Past Economic Loss $1,750
Loss Of Future Earning Capacity -
Outstanding Special Damages $1,910
Cost Of Future Psychiatric Consultations $2,500
Future Medication $5,200
Interest $220
Total $26,780
Judgment was entered for the plaintiff for the amount of the assessed damages including interest in the sum of $26,780. Because the award was less than $30,000 the District Court Judge refused the plaintiff any costs; s 42(2) District Court Act 1991 (SA), District Court Rule 101.2A. Because the amount of the assessed damages was less than an offer to consent to judgment which had been filed by the defendant in the sum of $28,160 the District Court Judge ordered the plaintiff to pay the defendant’s costs from a date 14 days after service of the offer, being 17 June 2000.
The plaintiff complains of the assessment upon the following grounds:
1.The Learned Trial Judge erred in assessing the plaintiff’s non-economic loss at 10 points on the scale provided by Section 35a of the Wrongs Act, which sum was manifestly inadequate and in particular having regard to the plaintiff’s depression.
2.The Learned Trial Judge erred in failing to make any award for economic loss beyond about the middle of 2000 as the plaintiff’s psychiatric condition which had been the basis of an award of economic loss up to that point was continuing and in the opinion of the psychiatrists, Professor Goldney and Dr Ash, was likely to continue for many years. On the basis of such psychiatric evidence the Learned Trial Judge should have found that there was also consequential loss in relation to inability to undertake some public speaking as the learned trial Judge had found for the period ending in about the middle of 2000.
3.The Learned Trial Judge erred in failing to make any award for economic loss arising from the plaintiff’s inability to write a football column for newspapers due to his inability to concentrate for long periods when the evidence of the plaintiff was that he had written such columns in the 1980s and had an interest in resuming writing, if his psychological condition did not prevent this.”
The first ground of appeal is directed solely to the assessment of the plaintiff’s non-economic loss and whether the numerical value on the scale running from 0-60 assigned by the Trial Judge was appropriate. The second and third grounds go to the assessment of damages for the plaintiff’s loss of earning capacity. The second ground complains of the failure by the learned Trial Judge to award any damages in respect of loss of future earning capacity in respect of the earning capacity identified in the ground.
The third ground certainly is a complaint again of the failure by the Trial Judge to award any damages for the loss of future earning capacity. It could also have been construed as a complaint of the failure by the Trial Judge to award any damages in respect of the particularised earning capacity to the date of trial. However during the appeal Mr Britton, counsel for the plaintiff, made it clear that the plaintiff only sought to attack the Trial Judge’s failure to award damages for loss of future earning capacity.
There is no complaint in relation to any of the other heads of damages.
The appellant seeks the reassessment of the plaintiff’s damages by this Court and an award of damages greater than that allowed by the Trial Judge. The plaintiff also seeks an order that the defendant pay the costs of this appeal and the costs of trial.
The last mentioned matter can be dealt with immediately. If the plaintiff succeeds in convincing this Court that it ought to reassess damages at a figure greater than that allowed by the Trial Judge and, indeed at a figure greater than that provided for in the Notice Of Offer, then the Trial Judge’s order in relation to the plaintiff’s obligation to pay the defendant’s costs after 17 June 2000 would have to be reviewed. Moreover if this Court was persuaded to reassess damages in a sum in excess of $30,000, then the order depriving the plaintiff of his costs would also have to be reviewed. In other words any orders on appeal in relation to the costs of trial must depend upon the plaintiff succeeding in convincing this Court that the assessment of damages was erroneous for any of the reasons mentioned in the grounds of appeal.
The plaintiff was born on 27 April 1940 and is a very well known sportsman in this State. He played League Football for the Port Adelaide Football Club between 1958 and 1973. He was a champion footballer. In 1974 he became that Club’s non-playing coach and remained in that post until 1982. In 1983 he accepted the position as coach of the Collingwood Football Club in the VFL Competition and remained the coach of that Club for that year and the next.
In 1985 he returned to South Australia and was appointed the coach of the West Adelaide Football Club and remained coach of that Club until 1987.
He was persuaded to return to coach the Port Adelaide Football Club in 1988 and coached that Club until June 1996 when he resigned in order to accept an appointment as coach of a Club to be formed, Port Power, which was to enter the AFL Competition in 1997. His appointment was for two years. He coached Port Power in 1997 and 1998.
He was replaced as coach in 1998. Since that time he has been employed mainly by Triple M, a radio station in South Australia.
The plaintiff has had other business interests apart from his interest connected with football. Between 1966 and 1982 he was in partnership with another former Port Adelaide Footballer, Mr David Boyd in a business which conducted a caryard at Queenstown. It traded under the name of Cahill Toyota. He ceased to have any interest in that business when he went to Victoria to coach the Collingwood Football Club at the end of 1982.
When he returned to South Australia in 1985 he bought a chicken shop at Grange. He later entered into a partnership with his brother-in-law to conduct that business. The business continued for about seven years. In 1988, not only was he involved in that business but he also took up employment at Unley Mitsubishi where he remained until 1993. In 1993 he started another business, John Cahill Motors which he conducted at premises at Hendon. He remained the proprietor of that business past the date of the accident but the business has since ceased.
The plaintiff, apart from his radio and television commitments, is also involved in a business growing turf at Walkers Flat at the Murray River. It appears from the evidence that he is physically involved in that business. It is not clear from the evidence what financial return that business is likely to bring him. It is also not clear from the evidence whether that business would prevent the plaintiff involving himself in other activities connected with his radio and television interests.
The plaintiff had previously been involved in a rear end collision in March 1990. On that occasion he was driving his vehicle North along Goodwood Road and became stationary about 40 metres South of the intersection of Goodwood Road and Anzac Highway. His car was struck from behind. He suffered soft tissue injuries to his neck and his lower back. He also suffered a psychological reaction which was described as a partial form of post traumatic stress disorder with significant depression. He also suffered anxiety. He underwent psychiatric treatment by consulting Dr Burvill, who prescribed antidepressant medication. His condition was either exacerbated or at least aggravated by the break up of his marriage during 1992.
The Trial Judge found that his physical symptoms from that accident had also resolved by about 1994 except for occasional pain in his lower back when he suffered a painful spasm. Those instances of painful spasm occurred in the two years prior to the subject accident, about once or twice a year. Otherwise he had made a full physical recovery from the first accident.
The Trial Judge also found that his psychological problems had also mainly resolved by late 1994. The only sequelae in that regard was some apprehension in traffic which the Trial Judge described as hypervigilance but of no consequence.
The plaintiff settled his claim for personal injuries in respect of the 1990 accident in 1992.
The plaintiff divorced in 1992. He has not remarried but he has enjoyed a relationship with a Ms McLeod since late 1992. They have been living together since 30 June 1996.
There are two other relevant matters which the Judge considered and which need to be mentioned. First, one of the plaintiff’s sisters committed suicide when she was about 30. Professor Goldney, who provided two expert’s reports and was called by the defendant said that of those who commit suicide 70 per cent have depressive illnesses. He also said that there was probably a 12-15 per cent chance of a first degree relative (sibling) of such a person developing a depressive illness. It was the defendant’s case that that contingency ought to be taken into account in the assessment of the plaintiff’s damages. The Trial Judge rejected that submission. He found that there was no evidence that the plaintiff’s late sister did have a depressive illness. In those circumstances he was not prepared to take into account such a contingency. The defendant does not complain of that finding.
Professor Goldney also said that once a person has suffered a major depressive illness, which the plaintiff had as a consequence of the accident of 1990, there is a 70 per cent likelihood of that person suffering a recurrence within a period of the next ten years. The defendant did not claim that it had discharged the evidential onus and established that the plaintiff would have suffered a major depressive illness in any event: Watts v Rake (1960) 108 CLR 158. The Judge, however, indicated that he would take into account the contingency that the plaintiff may have suffered a recurrent episode of major depressive illness for reasons unconnected with the accident. There is no complaint by either party about that finding.
The plaintiff tendered his taxation returns for the years ending 30 June 1994 to 30 June 1999. No taxation return was tendered for the year ended 30 June 2000 notwithstanding that the hearing of this matter occurred on 11 December 2000.
I set out hereunder the plaintiff’s approximate taxable income for each of the financial years.
Financial Year Taxable Income 1994 $33,000 1995 $44,000 1996 $67,000 1997 $101,000 1998 $105,000 1999 $258,000
The plaintiff’s income needs some explaining. In the year ended 1994 and 1995 it seems that almost 100 per cent of the plaintiff’s earnings represent salary from the Port Adelaide Football Club, no doubt as that Club’s coach. In 1996, 1997 and 1998 the majority of the plaintiff’s income was represented by salary paid by the Port Adelaide Football Club. In each of those years the income tax returns show allowances paid, in 1996 $18,000 and 1997 and 1998 $20,000.
I think it can be assumed that those allowances were also a consequence of the plaintiff’s involvement with the Port Adelaide Football Club.
The plaintiff ceased to be the coach of Port Power at the end of the 1998 season. His income for the financial year ended 30 June 1999 included a figure of $150,000 which the Port Adelaide Football Club paid to him by way of a termination fee. He otherwise received $33,928 from the Port Adelaide Football Club which no doubt represented his coaching fees for the period to September 1998. He also had income from Amalgamated Television Service of $5,550 and from Adelaide FM Radio Pty Ltd of $55,074.
It is clear enough, of course, from the fact that the plaintiff ceased to be a football coach at the end of the football season in 1998 that the plaintiff needed a replacement income. It is also clear enough from the taxation return for the period ended June 1999 that he had already achieved that, if not in full, certainly partially. As I have said he did not tender his taxation return for the year ended 30 June 2000. He gave evidence that he was under contract to Triple M at the time of trial and received somewhere in the vicinity of $76,000 together with a substantial allowance for advertising which was up to the value of $100,000. He also gave evidence that he received a fee for appearing on Channel 7 each Friday night during the football season in 1999 of $10,000.
It is not clear to me why the plaintiff was unable to be more precise about his earnings after 30 June 1999. I would have thought the documentary evidence of the sources and the amount of income from those sources after June 1999 was available to the parties. Whether those documents were discovered or not I am, of course, unable to say. However, the parties were content to leave the evidence vague which could have only made the Trial Judge’s task more difficult.
There is one further matter that needs to be referred to before I turn to the subject accident.
The Trial Judge found that the plaintiff’s evidence was, in some respects, unreliable. He also found that the plaintiff exaggerated his physical injuries to a degree. The learned Trial Judge said that the plaintiff was prepared to exaggerate his symptoms for his own benefit [AB 164.11]. The learned Trial Judge referred to two particular instances to support that conclusion. First the uncontroverted evidence that the plaintiff told his medical practitioners that he avoided playing golf, when in fact only a few months before he played three rounds of golf at Laguna Keys. Secondly the plaintiff’s evidence about the amount of work that he was able to do in connection with the turf business at Walkers Flat.
On appeal the defendant contended that there are other examples of frank exaggeration on the part of the plaintiff. In particular this Court was directed to the plaintiff’s evidence relating to an exercise regime that he employed after this accident. It was put to this Court that the plaintiff’s evidence in that regard also demonstrated exaggeration.
The plaintiff’s counsel submitted that the Trial Judge had placed too much regard on the plaintiff’s evidence in respect to the two matters to which I have referred and therefore became too sceptical of the reliability of the plaintiff’s evidence. He said this Court should make an assessment for itself of the reliability of the plaintiff’s evidence: State Rail Authority of New South Wales v Earthline Constructions Pty Ltd & Ors (1999) 160 ALR 588.
It was necessary for the Trial Judge to make an assessment of the reliability of the plaintiff’s evidence. The Trial Judge was bound, in my opinion, to determine whether he could accept the evidence at face value, whether he was required to scrutinise it carefully or whether to discount it because of exaggeration. The assessment of damages for personal injuries requires the trier of fact to inquire into many matters which are subjective to the plaintiff. It is only the plaintiff who really knows the extent of the pain and suffering which he or she is suffering. Often it is only the plaintiff who knows whether or not any disability which the plaintiff suffers does in truth interfere with the exercise of the plaintiff’s earning capacity. It is the plaintiff’s evidence which usually demonstrates what needs the plaintiff must be compensated for, arising out of the plaintiff’s injuries.
The Trial Judge, in my opinion, was bound to make an assessment of this plaintiff’s reliability. However it is true, as Mr Britton has submitted, that the Trial Judge’s findings on credibility should not preclude this Court from making an assessment for itself of the plaintiff’s reliability. This is especially so, in this case, because the Trial Judge did not rely so much upon the demeanour of the witness but only upon the subject matter of the witness’s evidence.
If this Court believed that the Trial Judge was wrong to conclude that the plaintiff’s evidence was unreliable because of exaggeration then this Court should say so.
I have read the plaintiff’s evidence. Regrettably from the plaintiff’s point of view I have to say that I have formed the same opinion as the Trial Judge. The plaintiff’s evidence contains, in my opinion, exaggerations which make his evidence unreliable. The Trial Judge has given two instances of exaggeration. There are, as defendant’s counsel has submitted, others. For example the plaintiff said, in his evidence in chief, that he had “never ever” suffered from headaches prior to this accident. [TX 97 and 113] In cross examination he repeated that claim until the cross examiner pointed out to him that in his claim for damages in respect to the first accident he claimed he had suffered from constant headaches. His evidence on this topic is unsatisfactory.
A further instance of the unreliability of his evidence is in relation to the exercise regime which he maintained after this accident and which he continued to maintain until he suffered an injury to his foot, which was unassociated with this accident. In my opinion, the plaintiff’s evidence in relation to his exercise regime and its interruption was unsatisfactory.
Having embarked therefore on the exercise which Mr Britton suggested was appropriate, I have reached the same conclusion as the Trial Judge and that is that the plaintiff’s evidence in a number of respects is unreliable because the plaintiff was prone to exaggeration.
It may be that the plaintiff mistakenly believed that he had to be an advocate in his own cause. It may be that he thought it was appropriate to put his case higher than it deserved. It may be that he thought he had to convince the Trial Judge of the extent of the pain and suffering and disabilities of which he complained. It is unfortunately often the case that plaintiffs in claims for personal injuries believe that they must act as advocates in their own cause. It does not matter much in the end result why it is that his evidence contains exaggeration. The fact is that it does. Because his evidence contains exaggeration in relation to his pain and suffering and his disabilities, his evidence can be described as unreliable.
With that background I turn to the subject accident.
The accident occurred at 9:00am on 7 August 1996 when the plaintiff was driving his car in a northerly direction on Frederick Road at West Lakes. He came to a halt behind the vehicle which was travelling in front of him. He realised the defendant’s car which was travelling behind him would not stop without colliding with his motor vehicle. An impact occurred which was of sufficient severity to push his car across a three metre wide plantation into the path of oncoming traffic travelling South along Frederick Road.
The plaintiff said, and the Judge accepted, that he believed at the time of the accident that there was a good chance he would be killed.
Immediately he felt some pain in his back and neck. He was removed by ambulance to the Queen Elizabeth Hospital for x-rays and observation where he remained for about four hours. Ms McLeod took him home from the hospital and he went to bed where he remained for the next two days.
On the day following the accident his general practitioner visited him at his request. The plaintiff was then complaining of neck and back pain. His general practitioner reviewed him again on 12 August and treated him for shingles which were in all probability a result of the stress associated with the accident. He responded immediately to treatment.
As early as October 1996 the plaintiff consulted Dr Burvill, psychiatrist, who had previously treated him in relation to the first accident. It was Dr Burvill’s diagnosis that the plaintiff was again suffering from a post traumatic stress disorder arising from the subject accident. Dr Burvill believed the plaintiff’s fear of his own death during the accident was the trigger for that post traumatic stress disorder. He also diagnosed the plaintiff as suffering from significant depression and prescribed an antidepressant.
Whilst the plaintiff was not then actively coaching a football side (Port Power not entering the AFL until 1997) the Trial Judge found that the plaintiff’s position required him to motivate players in a sport that does not accept weakness. He found that the plaintiff disguised his symptomatology except from a few close and trusted friends so as to avoid a loss of credibility.
The plaintiff’s condition slowly improved. He regained his neck movement. He continued to suffer lower back pain similar to that which he had experienced after the first accident which was aggravated if he sat for a long period.
Two months after the accident he first noticed hip pain. There was a division of opinion between two orthopaedic surgeons, Mr Fry and Mr Pohl whether the hip pain was a consequence of the accident. The Trial Judge found on the balance of probabilities that the right hip pain resulted from the accident. In that regard he accepted the evidence of Mr Pohl.
The plaintiff’s physical injuries were relatively minor. The Trial Judge described them thus at paragraph 16:
“His physical injuries played a comparatively minor part in the sequelae to this accident. Although there was some inconsistency in the plaintiff’s evidence, to which I shall refer in due course, I am satisfied on the evidence as a whole that, although there has not been complete resolution of his physical symptoms, the residue is minor. He has some soreness and stiffness in his neck depending on the level of his activities. He has the occasional headache. He described both the neck problems and the headaches as “nuisance value”. Since the symptoms first appeared in his right hip there have been intermittent episodes of pain. His hip now gives him the occasional twinge.
The plaintiff also continues to complain of pain and discomfort in his lower back. I accept that the activities required of him as coach caused pain and discomfort in his lower back, especially in the early stages, but the evidence shows that this gradually abated. However, the plaintiff exaggerated his current back problems in his evidence-in-chief.”
There was a dispute between the parties to whether the low back pain was a result of this accident or a manifestation of symptoms from the first accident.
The Trial Judge accepted the plaintiff’s claim that there was good reason to accept a causal connection between the subject accident and the plaintiff’s lower back problems.
The Trial Judge further summarised the plaintiff’s medical condition at paragraph 24:
“On a fair reading of the evidence, the plaintiff’s current physical condition is that he can probably do most things but sometimes, depending on the degree, exertion will cause him discomfort in the lower back. I accept also that there are occasions when, for no apparent reason, his back will seize up and he needs to rest it for a day or so. That is the same problem he had before the subject accident but it probably happens a little more often; a few times a year instead of a couple of times a year.”
The main thrust of the plaintiff’s claim was that he had suffered psychological sequelae. The plaintiff developed a phobia about driving and traffic generally. He was treated for that by a psychologist, Mr Burvill and for anxiety over a period of time until August 1998.
He has also suffered difficulty with sleep and his moods. His libido was significantly reduced. He suffered from anxiety.
Two psychiatrists were called, Dr David Ash, by the plaintiff and Professor Robert Goldney, by the defendant. The Trial Judge found little difference in the effect of their evidence.
Dr Ash, who is treating the plaintiff, described the regime of medication which had been prescribed. He believed that the plaintiff did not need psychiatric treatment indefinitely but that the plaintiff should continue to see him about six times a year for the next three to four years. He thought that the plaintiff should continue on antidepressant medication indefinitely.
Professor Goldney thought that the plaintiff would need medication for at least another two years and that on balance he would need antidepressant medication indefinitely.
Although the Trial Judge had not said so expressly it seems to me that it must follow that it was his opinion that the plaintiff would need the assistance of a psychiatrist for three to four years and would need to remain on antidepressant medication for the rest of his life.
The Trial Judge assessed the cost of future treatment and medication upon the basis that the plaintiff would need to see Dr Ash every couple of months for the next three to four years. He also allowed for the cost of antidepressant medication upon the basis that it would continue throughout the plaintiff’s life.
The defendant asserted that the plaintiff’s psychological condition could be attributed wholly or partly to four separate incidents which occurred after 1997. It is not necessary to recount those incidents because the Trial Judge rejected the defendant’s contention in that regard. He found that those various matters would have been upsetting but they were not of themselves or even collectively sufficient to have caused a depressive illness.
The plaintiff’s damages were assessed more than four years after the accident. His physical disabilities had largely recovered within probably two years but there was, as the Judge pointed out, a continuing physical disability in relation to his lower back. His psychological disabilities were continuing at the time of the assessment and would continue to require psychiatric assistance for another three to four years.
Notwithstanding there will be continuing psychological problems there had been significant improvement in regard to the appellant’s post traumatic stress disorder. Professor Goldney was of the opinion that the appellant had improved psychiatrically between 1999 and 2000. Dr Ash also expected that over a time there would be further improvement in his symptoms.
Indeed the Trial Judge found that there had been a significant improvement in his psychiatric condition. That finding has not been challenged on this appeal.
The plaintiff’s damages came to be assessed upon the basis that the plaintiff had largely recovered from his physical injuries although he had a continuing residual disability with low back pain. He was, at the trial, continuing to suffer from psychological disabilities such that he needed to have a further three to four years of treatment and would need to remain on antidepressant medication for the rest of his life.
Presumably also the plaintiff suffered the risk of recurrence of his major depressive illness as recounted by Professor Goldney.
The Trial Judge was obliged to assign numerical value on a scale running from 0-60 and then to multiply that figure by the prescribed amount.
It is the plaintiff’s contention that the assigned value of 10 is manifestly inadequate.
This Court may only interfere with the Trial Judge’s assessment if it believes that that assessment is a wholly erroneous estimate of the damage suffered. It is not for this Court simply to substitute its opinion for that of the Trial Judge. The Trial Judge enjoyed the advantage of seeing and hearing the witnesses, particularly the plaintiff. That advantage must not be overlooked.
Mr Britton contended that although specific heads of damages have been targeted on this appeal in the end result this Court has to determine whether the global sum awarded by the Trial Judge was a wholly erroneous estimate of the plaintiff’s loss. In making that submission he relied upon Masson v Crook (1979) 22 SASR 473 and in particular a dictum of King CJ at 478:
“Although it is often useful for the purpose of working out an assessment, and later for examining its adequacy, to consider economic and non-economic factors separately, the final question for an appellate court was whether the global sum awarded is a wholly erroneous estimate of the plaintiff’s loss, as being either too high or too low.”
There can be no doubt that it is still right to say, as I have already indicated, that the test is whether the assessment is a wholly erroneous estimate of the plaintiff’s loss. I would not disagree, of course, with the statement of principle made by King CJ, at the time he made it, that the final question is whether the global sum awarded is a wholly erroneous estimate of the plaintiff’s loss.
However, I do not believe that it is any longer appropriate, on an appeal from an assessment of damages for personal injuries arising out of a motor vehicle accident, to make an assessment of whether the global award is a wholly erroneous estimate of the plaintiff’s loss.
That is because damages are no longer assessed by reference to the common law. The injunctions in s 35A of the Wrongs Act 1936 (SA) require courts in this State to make an underassessment in dollar value of the loss experienced by a plaintiff in respect of a number of heads of damages. A plaintiff’s pain and suffering in cases of this kind must be assessed in a dollar value which is significantly less than that to which the plaintiff would be entitled if the plaintiff’s damages were assessed at common law. So also a plaintiff’s loss of earning capacity, if assessed by reference to a discount rate, gives rise to an underestimate of the plaintiff’s true loss. That is because the discount rate which is required to be applied by reason of the Wrongs Act is higher than that which operates in the market: Todorovic v Waller (1981) 150 CLR 402.
It would be misleading for a Court to stand back from a global award to determine whether the award represents a fair estimate of a plaintiff’s loss. If the Court did that it would determine almost in every case that the award, at least as far as a common law assessment is concerned, is a significant undervaluation of the plaintiff’s loss.
In my opinion, because of the provisions of the Wrongs Act, each of the heads of damages must be examined separately to determine whether the assessment of damages in respect of each of those heads of damages represents an appropriate assessment having regard to the provisions of the Wrongs Act. Each of the heads of damages, so far as this Court is concerned, when sitting on appeal from such an assessment, will be appropriate so long as each of the heads of damages are not a wholly erroneous estimate of the plaintiff’s loss in respect of the particular head of damage.
The assignment of the figure 10 on the scale running from 0-60 cannot be said to be a wholly erroneous estimate of the plaintiff’s non-economic loss. I am not only not prepared to say that such an assignment is a wholly erroneous estimate of the plaintiff’s non-economic loss, the figure 10 on that scale, in my opinion, is well within the range which would adequately compensate the plaintiff for that aspect of his damages.
The second ground of appeal deals with the plaintiff’s complaint that the Trial Judge failed to make an allowance with regard to the plaintiff’s loss of opportunity in relation to public speaking. The Trial Judge made an allowance in respect of that aspect of the plaintiff’s loss of earning capacity but only until mid-2000.
The plaintiff’s evidence in relation to his prospects of public speaking is unsatisfactory. In many respects it is vague. In particular, the evidence in relation to those prospects of those engagements after he ceased to be the Coach of Port Power is quite vague. The plaintiff was not prepared to be precise about the number of opportunities which had been presented to him and which he had foregone to the date of trial. He was not, as the defendant rightly contended, prepared to identify those who had sought him out as a public speaker.
Although the plaintiff claimed to have enjoyed public speaking [TX 390] it is clear from the evidence that even prior to the accident he declined opportunities to speak.
Ms McLeod, in her evidence, agreed that the plaintiff refused offers to speak because of pressure of work or any other reason prior to this accident.
The plaintiff employs as managers or agents two organizations, Vegas Promotions and ICM.
He agreed they would have full details of any public speaking engagements or motivational promotions which he had done. The evidence was not led.
The only speaking engagements which were identified were those which were identified in cross examination.
It was not clear from the plaintiff’s evidence why it was that he could not engage in public speaking. He suggested perhaps a lack of motivation and perhaps an inability to concentrate. However, he did not ever make it clear why he accepted some engagements but refused others.
Professor Goldney was asked whether he thought the plaintiff would be able to continue with doing public speaking and he expressed the opinion that he would.
The Trial Judge rejected the plaintiff’s case that the plaintiff would be unable to carry out public speaking engagements in the future. The Trial Judge specifically said that he was not satisfied that the plaintiff could not do as much of that type of work as he chose subject to offers being made.
In my opinion, that finding on the state of the evidence, was open to the Trial Judge. In my opinion, that finding does not indicate any misapprehension of the evidence. In my opinion, ground 2 has not been made out.
The third ground relates to the claim that the plaintiff by reason of his personal injuries is unable to write a football column. During the years that the plaintiff was the Port Power Coach he wrote a column in the print media relating to the Crows Premierships in 1997 and 1998. Those articles were ghost written. Also during the time that he was coach of Port Power he wrote a foreword to a publication entitled “From Port To A Power”. Further he contributed articles to the Port Power Magazine “Power To The People”. Clearly enough, therefore, the plaintiff accepted offers to write articles and indeed wrote them.
Evidence was led that the plaintiff was approached to write a column for the Sunday Mail. The offer was made shortly before the commencement of the football season in 1997. At that time the appellant was coaching in the AFL for the first time. When he coached Collingwood that competition was known as the VFL. The appellant refused the offer.
The Trial Judge found that the refusal was not due to any injuries suffered in the accident. The fact is that the accident was not mentioned in the decision process at all.
The Trial Judge refused to infer from the plaintiff’s failure to take up the offer to write a column in the Sunday Mail in 1997 that the plaintiff would be unable to write in the print media in the future.
Again, in my opinion, that finding was open to the Trial Judge. The plaintiff did not say that he refused to take up the offer to write on the Sunday Mail by reason of his injuries suffered in the accident. Indeed the likely reason, it may be inferred, is that the plaintiff had his hands full as coach of a newly formed team in the AFL.
In my opinion, the evidence in relation to this topic did not support a finding that the plaintiff had lost the capacity to write in the media or that that loss of capacity would be productive of economic loss. In my opinion ground 3 has not been made out.
Thus it cannot be said that the damages awarded by the Trial Judge were not within the range of damages for the injuries which the Trial Judge found to have been suffered by the plaintiff.
The plaintiff chose to present a case which in many respects was vague and in other respects was exaggerated. Having chosen to present his case in that way, in my opinion, he cannot complain of the result arrived at by the Trial Judge.
I would dismiss the appeal against the Trial Judge’s assessment of damages.
I would also dismiss the appeal against the orders for costs made by the Trial Judge. In view of his assessment of damages the order for costs was well within the exercise of his discretion. Indeed I think the order was correct.
The appeal should be dismissed.
BLEBY J. I agree with the reasons published by Lander J. In particular, having read the plaintiff’s evidence, I agree that there was every justification for the trial Judge’s conclusions as to the unreliability of the plaintiff’s evidence. I agree that for whatever reason the plaintiff was prone to exaggerate some of his disabilities, or to conceal their true cause. The lack of information as to the nature and source of his income, particularly for the 1999/2000 financial year, did not instil confidence in his evidence. His evidence as to public speaking engagements and his reasons for not undertaking some was quite unsatisfactory. I would not be prepared to depart from the trial Judge’s findings that his evidence was unreliable.
I also agree with Lander J’s observations as to the present applicability of what was said in Masson v Crook (1979) 22 SASR 473, namely that, on the assessment of damages, the question for the appellate court is whether the global sum is a wholly erroneous estimate of the plaintiff’s loss. For the reasons that Lander J has given, that is not now a permissible approach in the assessment of damages for personal injuries arising out of a motor vehicle accident. The law requires at least two elements of loss to be artificially assessed. That must occur against the relevant statutory criteria. It follows that each of the other elements must be separately assessed, and that the adequacy or otherwise of the global sum is no longer relevant.
I agree that on the evidence before him the assessment of 10 for the plaintiff’s non‑economic loss was well within the trial Judge’s discretion, and that the trial Judge’s findings as to future economic loss were open to him and were justified on the evidence.
I would dismiss the appeal.
WICKS J I agree that this appeal be dismissed for the reasons given by Lander J.
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