Callaghan Marie Creed & John Stephen v Alan Geoffrey Crane

[1982] FCA 201

Re: MARIE CREED CALLAGHAN and JOHN STEPHEN CALLAGHAN
And: ALAN GEOFFREY CRANE
No. NTG31 of 1981
Tort

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Franki J.
St. John J.
Toohey J.

CATCHWORDS

Tort - damages for loss of earning capacity - whether appellate Court should interfere with assessment of trial Judge.

HEARING

DARWIN

#DATE 27:9:1982

ORDER

1. The appeal be dismissed

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

JUDGE1

The Supreme Court of the Northern Territory awarded the respondent damages of $106,192.80 for injuries received in a motor vehicle accident on 21 July 1975. The learned trial Judge itemised those damages in the following way:

$

Pain and suffering 7,500.00 Loss of amenities 5,000.00 Loss of earnings to December 1980 12,750.00 Loss of earnings December 1980 to trial (29 September 1981) 4,500.00 Future loss of earning capacity 75,000.00 Special damages 1,442.80 $106,192.80

The appellants challenge only two components of that award, the sum of $4,500.00 for loss of earnings between December 1980 and trial and the sum of $75,000.00 for future loss of earning capacity.

The respondent suffered an extensive range of injuries which may be summed up as fractured right wrist, fracture of the upper third of the right humerus, fracture of both bones of the left forearm, laceration of the left knee, laceration of the lower lip and abrasions to the shoulders and left arm. The respondent's treatment continued well into 1978 and included plating the bones in the left forearm, re-plating and bone grafting the left radius, and inserting a pin in the left ulna. He has been left with residual disabilities to which we shall refer later in these reasons.

The respondent was 21 at the time of the accident. He left school at the end of 1973 and his work history until the accident involved employment as a laboratory assistant and as a builder's labourer. He was not qualified for any particular work.

As a result of his injuries the respondent was unfit for any work until June 1976. Thereafter he spent a short time in various jobs until in April 1977 he obtained employment with Queensland Railways. At first he worked as a shunter, but finding this too physically demanding and to some extent dangerous because of the lack of strength in his left arm, he shifted to duties as a guard. He remained with the railways until December 1980 and there is no challenge to the learned trial Judge's assessment of his loss of earnings from the date of the accident until that time.

The findings of the learned trial Judge were that in December 1980 the respondent, with his wife and young child, moved to Oakey in western Queensland so that his wife who is a qualified kindergarten teacher might take up an appointment. His Honour held that this was "a decision consciously made to suit the convenience of the plaintiff and his wife". Oakey is a small town with very little scope for work. His Honour also found. "It has only been during the two months prior to trial that the plaintiff has made any efforts to find work, which efforts have proved unsuccessful".

His Honour then considered a sum for what he described as "the period of the plaintiff's voluntary retirement". He allowed an amount of $4,500.00 and although he did not indicate any particular basis upon which he arrived at that sum, he did so in the context of a finding that had it not been for the offer of employment in Oakey to the respondent's wife, the respondent would have remained a little longer with the railways while seeking alternative employment; that it was probable he could not have carried on his work at the railways indefinitely, but that there was a greater likelihood of alternative employment in Brisbane than in Oakey.

The appellants submitted that in the light of these findings and of the evidence generally the respondent had failed to demonstrate any economic loss in respect of the period from December 1980 until the date of trial. The fact that the respondent and his family went to Oakey as a matter of their own convenience is of course a relevant consideration. But it is well established that it is loss of earning capacity for which a plaintiff is to be compensated (Todorovic v. Waller (1981) 37 A.L.R. 481.) To emphasise the voluntary nature of the respondent's decision to move to Oakey, without due consideration of his capacity to earn at the time, is to lose sight of the principles upon which the Court should proceed in assessing damages. The evidence of the respondent was that he had some difficulty even in carrying out the work of a guard. That work included shunting, attaching and detaching wagons and loading and unloading, for which from time to time he needed assistance. He was suffering pain and was concerned about the danger of handling couplings with a weakened left hand.

At the time he left the railways the respondent was earning about $200.00 a week net or $10,000.00 a year. In view of the learned trial Judge's finding that it was likely, had it not been for the move to Oakey, that the respondent would have remained a little longer with the railways but that he could not have carried on that work indefinitely, the sum of $4,500.00 awarded in respect of the period from December 1980 until September 1981 was not unreasonable to compensate the respondent in respect of a time when he might not have been able to work at all or a time during which his capacity to earn was reduced.

Although in a case like the present one, there may be little advantage in isolating such a period of time, it was in fact done. We are not persuaded that his Honour erred in principle or acted on a misapprehension of the facts or that the sum awarded was manifestly excessive. In those circumstances the Court should not interfere (Precision Plastics Pty Ltd v. Demir (1975) 132 C.L.R. 362).

In relation to the amount of $75,000.00 awarded for future loss of earning capacity, no particular basis upon which that figure was arrived at emerges from his Honour's reasons. In the circumstances it could not be a figure reached with any degree of precision. His Honour's finding, supported by the evidence, was that the respondent's "present limited earning capacity will be further diminished at some indeterminate time in the future by osteoarthritic changes in his arms and wrists. There is indeed the possibility that his earning capacity may be so diminished due to this cause at some time in the future that it will, for practicable purposes, disappear".

At the time of the hearing the respondent was 27. He had a work expectancy of at least 30 years. In the opinion of a specialist surgeon who gave evidence, Mr Johnstone, he would not be able to work as a scaffolding labourer because of the damage to both wrists. He would not be able to do continuous hard work employing his hands and wrists and should be capable of light work using his hands and wrists, provided no prolonged repetition of movement was involved. Mr Johnstone considered that the respondent could not be employed in heavy engineering but, subject to the proviso regarding prolonged repetition, he could probably be employed in light engineering. Mr Johnstone was also of the opinion that the respondent should be capable of light non-repetitive duties with his hands and wrists such as looking after and feeding laboratory animals.

The respondent's pre-accident work history was largely one of labouring. Whilst he had limited experience as a laboratory assistant, it appeared he needed qualifications to pursue that occupation and that those qualifications could not be obtained without first passing a matriculation examination.

The amount of $75,000.00 awarded by the learned trial Judge may be seen in various ways. Spread over a period of 35 years and discounted at 3%, it was agreed that it represents something of the order of $65.00 a week. Viewed in terms of the possibility that the respondent's earning capacity might at some future time disappear for all practicable purposes, it does not reflect a period of many years, even in terms of the respondent's earnings at the time he left the railways.

The learned trial Judge spoke of plans by the respondent to use part of the damages he will recover to set up a small business dealing in and repairing motorcycles. His Honour expressed the view that the respondent had the capacity to make a success of such a business but that he must take into account "the hazards of small business and the possibility that the disabling onset of osteoarthritis may occur at the earlier end of the time scale predicated by Mr Johnstone". The appellants contended that his Honour erred in taking into account the hazards of small business or the risk of failure of any business the respondent might enter upon, in the absence of any evidence on those matters. But these are matters of common knowledge which his Honour was entitled to take into account. He was quite entitled to pay regard to the vicissitudes of life. In any event the evidence suggested little more than that, with sufficient capital, the respondent would like to open a motorcycle shop. He spoke of doing a business course by correspondence to equip himself for such a project. But it is apparent that the respondent has done little more than consider such an undertaking and in our view its relevance as a course of income was a factor of very little weight indeed when considering the respondent's loss of earning capacity.

Time and time again the courts have emphasised that "damages for financial loss likely to result from personal injury 'can only be an estimate, often a very rough estimate, of the present value of his prospective loss'" (Todorovic v. Waller supra at pp.486-487). We are not persuaded that, in respect of the $75,000.00, the appellants have demonstrated any error in the principles applied by the learned trial Judge or that he misapprehended the facts; nor have they shown that the amount was manifestly excessive.

Counsel for the parties approached the appeal only in terms of the particular components under attack. No attempt was made by the appellants to demonstrate that overall the award was excessive or by the respondent to show that in its entirety it was no more than adequate.

In the opinion of the Court the appeal should be dismissed with costs.