Cruickshank v Pejovic

[1999] NSWCA 232

CITATION:	Cruickshank v Pejovic [1999] NSWCA 232
FILE NUMBER(S):	CA 40150/97
HEARING DATE(S):	29 June 1999
JUDGMENT DATE:	12 July 1999
PARTIES :	Heidi Cruickshank Georgina Pejovic
JUDGMENT OF:	Giles JA at 1; Brownie AJA at 9; Cole AJA at 10

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	DC6774/93
LOWER COURT JUDICIAL OFFICER:	Goldring ADCJ

COUNSEL:	Appellant - J D Hislop QC & G R Travers Respondent - M J Cranitch SC & S A Fonti
SOLICITORS:	Appellant - Stewart, Cuddy & Mockler, Sydney Respondent - Margiotta, Leichhardt
CATCHWORDS:	DAMAGES - no question of principle.
DECISION:	Appeal dismissed with costs.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40150/97
DC 6774/93

GILES JA
BROWNIE AJA
COLE AJA

Monday 12 July 1999

Heidi CRUICKSHANK v Georgina PEJOVIC
as administrator of the Estate of Robert PEJOVIC

JUDGMENT

1    GILES JA: I agree with Cole AJA, with the following additional observations concerning past economic loss.

2    The past economic loss was the reduced product of work for 82 weeks at the earning capacity of a foreman carpenter. There was no reduction for residual earning capacity. There was a reduction on the basis that the plaintiff would have worked only for 80 per cent of the 82 weeks, the 80 per cent coming from the percentage of time he had worked for a period of years prior to 1990.

3    The defendant’s complaints were essentially three.

4    The first complaint was that there was no allowance for the possibility that the plaintiff would not have worked for the 82 weeks because of his stomach complaint. It seems that the stomach complaint was not one of the reasons for the 80 per cent work history. As part of accepting that the plaintiff would have returned to work in early 1994, his Honour said that the evidence from three doctors, as well as from the plaintiff, was that although the stomach continued to trouble him it did not affect him so severely that it could stop him working. Two of the named doctors said nothing about the stomach complaint, and the third did not in terms express this view. However, I do not think this misapprehension on his Honour’s part undermines what he did. He was entitled to act on the evidence of the plaintiff, but of more importance the evidence indicated that the stomach complaint had at least settled by the end of 1993 and there was nothing to indicate that it was then, or thereafter became, an impediment to the plaintiff working.

5    The second complaint was that there was no allowance for any other vicissitudes which might have prevented the plaintiff from working for the 82 weeks. However, there was a built-in allowance in the 80 per cent, and again there was nothing in the evidence to suggest additional or particular vicissitudes taking effect in the known period prior to the trial for which further allowance should have been made. It was open to the trial judge to take the course he did in this respect.

6    The third complaint was that there was no allowance for residual earning capacity. His Honour clearly found that there was a residual earning capacity. After describing the plaintiff’s rather ineffectual efforts to find work as a foreman carpenter, he said that there was no evidence that the plaintiff had made serious efforts to find work that he could do, apart from asking friends for lighter work as a carpenter, and “from this evidence I am not prepared to find that he could not have worked since say January 1994, though certainly not as a foreman carpenter. If work had been available he could have done something”.

7    The problem lies in the words, “If work had been available …”. It is plain enough that his Honour considered that the plaintiff would have difficulty in working other than as a foreman carpenter, because of his educational background and past working history, and would need advice and training in a different sort of work. This was expressly material to future economic loss, but it was also material to past economic loss in that, in the absence of advice and re-training equipping the plaintiff to do other work, work had not been available.

8    His Honour must have concluded that, although there was a residual earning capacity, the past economic loss should be assessed on the basis that the residual earning capacity was worth nothing in the period to trial and the reduced earning capacity in fact brought loss measured by the earning capacity of a foreman carpenter. He was entitled to take that approach and, on the rather scrappy evidence, that view.

9    BROWNIE AJA: I agree with each of Giles JA and Cole AJA.

10    COLE AJA: The plaintiff, Robert Bozidar Pejovic has died since the trial and has been replaced as respondent by Georgina Pejovic as administrator of his estate. Mr Pejovic ("the plaintiff") was injured in a motor vehicle accident which occurred at about 4:30 pm on 26 June 1992. He was driving his motor vehicle on the Hume Highway, Warwick Farm. The road was wet, he braked and skidded into the vehicle ahead of him. Very shortly thereafter, the appellant's vehicle which was following the plaintiff's vehicle collided with the rear of the plaintiff's vehicle. Goldring ADCJ, in a judgment delivered 27 February 1997, held that the appellant was negligent in colliding with the rear of the plaintiff's vehicle. He awarded the plaintiff the following damages:

Non-economic loss (twenty-seven per cent): $58,190.00
Out-of-pocket expenses: 8,048.62
Past economic loss: 43,427.20
Future economic loss: 110,639.20
Future medication: 4,416.00
Interest: 1,503.73

Total: $226,914.75

11    Four points were raised on appeal. It is convenient to deal with each separately.

Contributory negligence:

12    The appellant contends that the trial Judge ought to but did not make an allowance for contributory negligence by the plaintiff. The contention was that the plaintiff's failure to avoid collision with the vehicle in front of him was caused by his failure to take reasonable care for his own safety and resulted in the appellant's vehicle colliding with the rear of his vehicle.

13    It is clear that the trial Judge misdirected himself when he said:

"In order for the defendant to establish contributory negligence she must prove that Mr Pejovic did something which amounted to a breach of the duty of care that he owed to her."

14    Contributory negligence is a failure by a person to take reasonable care for his own safety. However, nothing flows from this error.

15    The appellant's vehicle skidded into the rear of the plaintiff's vehicle when he collided with the vehicle in front of him. The appellant, as the trial Judge found, failed to take proper care to maintain a reasonable distance from the vehicle in front, failed to drive at a speed appropriate to the conditions and failed to keep a proper lookout. If the plaintiff stopped in circumstances of negligence on his part in colliding with a vehicle in front, the following driver nonetheless was obliged to drive a sufficient distance behind to enable her to stop. She did not do so. Thus, the collision which caused the injury sued for was entirely due to the negligence of the following driver. Any negligence of the plaintiff thus did not contribute to the collision between the appellant's vehicle and his.

General damages:

16    The trial Judge found that, as a result of the injury, the plaintiff suffered damaged to his cervical spine which led to surgery, fusion of discs and resulting permanent pain and discomfort. In addition, headaches which he suffered were found to be associated with his neck and back condition.

17    These findings have been subjected to attack on the basis that they were grounded on an erroneous or less than complete consideration of the totality of the evidence. It was contended that, first, it was wrong to attribute the whole of the neck injury to the accident, and second, the damages awarded were too high having regard to the prior condition of the plaintiff's neck. To my mind it is plain that a finding that the injuries I have described were a consequence of the accident was open to the trial Judge, and there is no basis for this Court disturbing that finding of fact. Once that finding is made, the assessment of general damages based on twenty-seven per cent of a most severe case under the motor accidents legislation is not open to successful challenge.

Past economic loss:

18    The plaintiff suffered, apart from the accident, from a variety of disabilities. He had not worked between 1990 when he received a disability pension and the date of the accident in June 1992. One basis for his disability benefit was an acute stomach complaint which continued until at least the end of 1993. The trial Judge accepted the plaintiff's evidence that he would have returned to work as soon as he could had it not been for the accident. In those circumstances, the trial Judge awarded past economic loss based on his returning to work in early 1994, but awarded him loss of income for six months only during 1994 and from the period January 1996 to the date of trial in February 1997. 1995 and part of 1994 were excluded because of other unrelated disabilities which would have prevented him from working. On this basis the trial Judge allowed eighty-two weeks loss of earnings to trial, based upon a lost earning capacity as a foreman carpenter.

19    It is true, as the appellant contended, that the trial Judge made no specific deduction for the circumstance that the appellant had not from January 1994 sought seriously to find work as a foreman carpenter but had made casual endeavours to find lesser work, that the trial Judge made no discount for the possibility that unrelated injuries might further reduce the plaintiff's capacity to work pre-trial, and that no specific deduction was made for any residual earning capacity during this period. Nonetheless, as it is clear that the trial Judge considered the totality of the plaintiff's injuries, his work history, his pre-accident medical condition and his endeavours to obtain employment pre-trial, I see no basis for disturbing the assessment of past economic loss.

Future economic loss:

20    The trial Judge found:

"It is clear from the evidence and it was conceded by the plaintiff that because of Mr Pejovic's age and general condition he could not reasonably expect to continue work as a foreman carpenter much beyond his present age."

21    His Honour also found that:

"It is clear that the injuries to his neck have significantly impaired his capacity to earn in the future, so that he can never expect to return to his previous work as a foreman carpenter and earn the money that he earned in that occupation."

22    The trial Judge did not make any specific finding regarding the plaintiff's post trial income earning capacity absent accident. He did find that the plaintiff would not be able to continue employment as a foreman carpenter, quite apart from the effects of the accident injuries. His Honour found that the plaintiff would require retraining to some new employment sphere, obviously implicitly finding a residual work capacity excluding the effects of the accident injuries. The approach adopted by the trial Judge in quantifying damages for loss of future earning capacity was to assume a continuing capacity to earn $662 per week, being the wage of a foreman carpenter, discount that to eighty per cent, being a deduction reflecting non-accident incapacities to work, deduct from that sum the residual earning capacity having regard to the accident effects, which was assessed at $250 per week, and then calculate loss based upon that resultant weekly figure for a period of loss of twenty-two years discounted at five per cent. The figure so produced was further discounted by forty-five per cent to take account of the fact that, in truth, the plaintiff would not work or earn as a foreman carpenter, would require retraining, and had other conditions which were likely to be restrictive of future earning capacity unrelated to the accident. Whilst not the usual method of determining damages for loss of future earning capacity, it was an available method which I would not disturb.

23    In my opinion, the appeal should be dismissed with costs.

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