Cirjak, S. v Beggs, P
[1991] FCA 343
•20 JUNE 1991
Re: SIME CIRJAK
And: PETER BEGGS
No. ACT G68 of 1990
FED No. 343
Damages
COURT
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Davies(1), Neaves(1) and Higgins(1) JJ.
CATCHWORDS
Damages - grounds upon which an appellate court may interfere with a trial judge's award of damages - whether a specific sum should have been allowed under the Griffiths v Kerkemeyer principle - whether a specific sum should be allowed for the cost of future medication - whether the award of general damages was so low as to be outside the range within which the discretionary or value judgment should have been made.
HEARING
CANBERRA
#DATE 20:6:1991
Counsel for the appellant: Mr R.E. Williams QC and
Mr G.A. Stretton
Solicitors for the appellant: Snedden Hall and Gallop
Counsel for the respondent: Mr P. O'Connor
Solicitors for the respondent: Crossin Power Haslem
ORDER
The appeal be allowed.
The trial Judge's orders be varied by substituting $159,608.21 for the damages awarded.
The respondent pay the appellant's costs of the appeal.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
This is an appeal from a judgment of a judge of the Supreme Court of the Australian Capital Territory in which his Honour ordered that there be judgment for the plaintiff, Sime Cirjak, in the sum of $130,764.21. The appeal raises only the question of the damages awarded.
Mr Cirjak, who was 57 years of age at the time, sustained an injury on 29 August 1986 when a vehicle which he was driving was struck in the rear by a vehicle driven by the respondent, Peter Beggs.
Mr Cirjak came to Australia from Yugoslavia in 1957. He followed a variety of unskilled and semi-skilled occupations showing a degree of initiative as he progressed from one job to another. In 1968, he joined the employ of the Royal Australian Mint as a plant attendant, being responsible for the maintenance of boilers, water pumps and the like. He was still in that employment at the time of the accident.
Mr Cirjak suffered a whiplash injury from the accident. His condition gradually deteriorated and he began to exhibit signs of depression, frustration and inability to adjust emotionally and psychologically to the persisting pain. Mr Cirjak saw his local practitioner, Dr Lai, and specialist medical practitioners, Dr Danta and Dr Keiller. On 26 August 1988, Mr Cirjak's position at the Mint was abolished and he was transferred to another section. He found the transfer to other activities somewhat demeaning and this transfer added to his psychological problems. Mr Cirjak saw Dr Andrews, Dr Corrie and Dr Newcombe. Late in 1988, Dr Newcombe performed a Cloward procedure operation at the C6-7 level involving the removal of an intervertebral disc, the freeing of the nerve root and the insertion of a graft taken from the right iliac crest. Unfortunately, the operation was not successful in overcoming Mr Cirjak's problems. He left hospital in great discomfort and said that the pain was "impossible to describe". On 5 July 1989, Mr Cirjak, who had been working for some time on a part time basis, ceased work altogether. He was retired from the Australian Public Service on the ground of invalidity on 28 June 1990.
Mr Cirjak saw other medical practitioners including Dr Chandran, Dr Saboisky, Dr Vanderfield and Dr Jones.
The learned trial Judge found Mr Cirjak to be a witness of truth and was satisfied that the failure of the operation in December 1988 in particular left Mr Cirjak with a substantial inability to cope psychologically with his situation. He found that Mr Cirjak suffered from depression and low self-esteem, that he had to wear a collar during most of the day, that he suffered from constant pain in the neck which was aggravated by activity, that he was on continuing medication for pain and depression and that, for practical purposes, he had no remunerative work capacity.
The trial Judge accepted that Mr Cirjak was not able to work in the garden and tend to other domestic chores, including painting the house and attending to the maintenance of the motor car and like matters, as previously he had done, that he had become a social recluse and that his lowered self-esteem had fed upon itself, particularly as it affected his relationship with his wife.
Mrs Cirjak was able to continue her work as a cleaner 8 hours per day but nevertheless found time to massage Mr Cirjak's neck for about 1/2 an hour each morning and evening and to do work in the garden and around the house that would otherwise have been done by Mr Cirjak. The trial Judge did not mention the fact; but presumably accepted Mr Cirjak's evidence that his wife had to chop the wood, mow the lawn, take the rubbish out, clean the gutters and do like tasks that previously had been done by Mr Cirjak.
The trial Judge found that Mr Cirjak had intended to work to the retiring age of 65 years and would have done so if he had been physically able. His Honour accepted that Mr Cirjak had a deteriorating spinal condition due in part to natural degeneration and in part to an earlier injury in 1968 and that this may well have necessitated retirement before the age of 65 years.
The trial Judge assessed damages as follows:-
"Past loss of earning capacity $ 30,000.00 Future loss of earning capacity $ 52,000.00 Loss of superannuation benefits $ 5,000.00 General damages $ 17,500.00 Past medical and hospital expenses $ 14,775.78 Fox v Wood component $ 5,938.43 Total: $125,214.21"
To this, his Honour added interest of $5,550.00 to make a total of $130,764.21.
As to the claim made under the principle enunciated in Griffiths v Kerkemeyer (1977) 139 CLR 161, his Honour said that:-
"This aspect of the case cannot be disregarded, but on the other hand it does not lend itself to mathematical calculation ... This aspect of the case will be catered for in the award for general damages."
As to future medical and like costs, his Honour said:-
"So too will be the component for continuing medication and associated expenses such as physiotherapy."
His Honour allowed $17,500.00 for general damages which included these two items. His Honour apportioned the general damages as to $10,000.00 to the past and $7,500.00 to the future. His Honour said that:-
"He is a man now aged 61 years and the sum for general damages must be substantially lower than that which might be awarded to a person incapacitated in the prime of life."
The grounds on which an appellate court may interfere with a trial judge's award of damages were discussed in cases such as Miller v Jennings (1954) 92 CLR 190, Precision Plastics Pty Limited v Demir (1975) 132 CLR 362 and Gamser v Nominal Defendant (1977) 136 CLR 145. For present purposes, it is sufficient to note that an award of damages is a discretionary or value judgment and that an appellate court should not interfere unless satisfied that the judge proceeded on a wrong principle of law or that his assessment of damages was wholly erroneous. In considering the last issue, an appellate court may examine the individual items making up the total award of damages but nevertheless must apply the test to the ultimate award.
In the present case, no challenge has been made to any aspect of his Honour's award other than those aspects with which his Honour dealt under general damages.
We would not disagree with the trial Judge that no specific sum should be allowed under the Griffiths v Kerkemeyer principle. Certainly, Mr Cirjak will incur some expenses in the future which he would not have incurred had he been able to continue to attend to the maintenance and upkeep of the house and his motor vehicle as he had done in the past. And certainly Mrs Cirjak does more of the household tasks than previously she did and has additional tasks such as massaging Mr Cirjak's neck. These matters seem to be part and parcel of the dramatic change in lifestyle which Mr Cirjak's injury brought about, a matter which ought to be dealt with under general damages. Mrs Cirjak is able to continue her occupation as cleaner as previously she did and the care which she gives Mr Cirjak is care which she gives to him as his wife. The attention which she gives is not care which, if she did not provide it, would have to be provided by some other person such as a nurse, a physiotherapist or a friend. This aspect of the matter may therefore be subsumed in the award of general damages.
But that is not to say that it is a trivial or insignificant matter. Mr Cirjak's lifestyle has greatly changed and his inability to undertake tasks is likely to necessitate the expenditure of money in the future if the tasks are to be done. Moreover, his inability to do many of the household chores and to maintain and upkeep the house places a considerable burden on Mrs Cirjak. This in turn affects his quality and enjoyment of life.
The cost of future medication and the like stands in a different position. Mr Cirjak gave evidence that he takes 6 Panadeine tablets a day, one 75mg tablet of Prothiaden a day, two 25mg tablets of Prothiaden a day and one tablet of Normison a day. Mr Cirjak gave evidence as to the cost of these tablets. The cost totals $1,121 per annum. There was no cross-examination as to these items. There was medical evidence that Mr Cirjak would continue to require medication. In addition, his Honour mentioned associated expenses such as physiotherapy and clearly anticipated that expenditure for such a matter might be required.
It is difficult to fix a sum for these items and his Honour did not do so. However, life tables would give to Mr Cirjak a life expectancy of a further 16 years. Mr Cirjak had a deteriorating spinal condition in any event and required a degree of medication. Moreover, once these proceedings are finished and Mr Cirjak approaches ordinary retiring age, it seems probable that he will be able to cope better with his injury. Being guided by his Honour's finding that Mr Cirjak's deteriorating spinal condition may well have necessitated retirement before the age of 65 years, we would assess this aspect of the matter by allowing 6 years at the annual sum claimed, a total of $6,726.00. That figure seems reasonable taking into account the fact that, while the injury will require some medication for a much longer time, the present level of medication is likely to be reduced. That sum makes allowance for the 3% discount required by Todorovic v Waller (1981) 150 CLR 402.
It is now apparent that the award of general damages made by the trial Judge was so low as to be outside the range within which the discretionary or value judgment should have been made. It is clear that the Griffiths v Kerkemeyer and future medication elements would together exceed the amount which his Honour had in mind for the future aspect of the award for general damages.
It is therefore necessary for the Court to make its own assessment of general damages. It seems to us that, in a case such as the present, the award made in respect of economic loss scarcely touches upon that aspect of the case which concerns the major alteration in Mr Cirjak's personality, in his self-esteem, in the relationship between himself and the community and in his relationship with his wife. Mr Cirjak is no longer an active member of the Croatian community, a person who plays sport, who earns an income as a worker and who is the dominant person in his own household. To use the words of the trial Judge, Mr Cirjak is now "a somewhat sorry figure". And this position is not likely to change. To these considerations, one must take account of the almost constant pain which Mr Cirjak suffers, the pain which he had as a result of the Cloward procedure and the shock and upset which he has felt after both the accident and the operation. The Griffiths v Kerkemeyer element must be added.
In addition to the $6,726 which we would allow for future medication, we would allow $40,000 for general damages, including an allowance for the Griffiths v Kerkemeyer element. For the purpose of interest, we would apportion that sum as to $20,000 in respect of the pre-judgment period. The trial Judge allowed interest of $3,700 on pre-judgment general damages. We would allow interest at the rate of 4% in accordance with the judgment in MBP (SA) Pty Ltd v Gogic (1991) 65 ALJR 203 and would therefore decrease the interest on pre-judgment general damages by $382 to $3,318.
In our opinion, the final figure sum of $159,608.21 is appropriate, having regard to the case overall. We would allow the appeal and vary his Honour's orders by substituting $159,608.21 for the damages awarded. The respondent should pay the appellant's costs of the appeal.
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