David John Durrant Todd (Respondent) v Allen John Wright (Appellant L) and Australian Telecommunications Commission (Appellant 2) No. SCGRG 89/390 Judgment No. 4035 Number of Pages 5 Damages Personal Injury

[1993] SASC 4035

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA KING CJ (1), OLSSON(2) AND DEBELLE(3) JJ

CWDS
Damages - Personal injury - severe multiple injuries - principal permanent disability to right knee - plaintiff retired compulsorily from Commonwealth Public Service where he had been employed as clerk/assistant at $405 p.w. net - permanently disabled from performing considerable range of jobs - unable to obtain employment - residual earning capacity but range of employment severely restricted - man aged 39 years at judgment - $175,000 for future economic loss not excessive - $45,000 for non-economic loss not inadequate - appeal and cross-appeal dismissed.

HRNG ADELAIDE, 7 July 1993 #DATE 7:7:1993
Counsel for appellants:     Mr S D G Apps
Solicitors for appellants:    Moloney and Partners
Counsel for respondent:     Mr S C Cole
Solicitors for respondent:    McQuade Hill and Co.

ORDER
Appeal and cross-appeal dismissed.

JUDGE1 KING CJ: The respondent to this appeal sustained injury on 26 February 1986, when a motorcycle which he was riding came into collision with a motor car. He sustained severe injury. He brought an action in the Supreme Court for damages for the injury which he sustained. Liability was agreed upon the basis that judgment should be entered for the plaintiff for 90% of his damages to be assessed. 2. The action came on for trial before a master of the court, Judge Bowen Pain, and his Honour delivered judgment on 17 September 1992. He assessed the respondent's damages at the sum of $382,136.31. He reduced that amount in accordance with the agreed judgment as to liability by 10% and gave judgment for the respondent in the sum of $343,922.68. The assessment of damages contained a component of past pain and suffering of $25,000, a component of future pain and suffering of $20,000, and a component of future economic loss of $175,000. I mention those components because they were the subject of challenge in the hearing before us. 3. The appellant, who is the defendant in the action, challenged the amount allowed for future economic loss. The respondent, who is the plaintiff in the action, challenged the amount allowed for non-economic loss, both past and future. 4. The respondent was born in 1952. He was, therefore, 34 years of age at the time of the accident, and approximately 40 years of age at the time that judgment was delivered. He suffered a fracture of the left radius and ulnar, fracture of the 2 right ulnar styloid and right lateral femoral condyle, compound dislocation to the right patella, crush fracture of the T4-5 vertebra, right subconjunctival haemorrhage, laceration to the forehead, damage to teeth, and general abrasions, bruising and soft tissue injury. 5. The injuries were severe. He was hospitalised immediately following the accident for a period of three weeks, and repairs of the bone fractures were undertaken and also dental repair. He subsequently underwent a bone graft from the hip. There was a subsequent confinement to bed after discharge from hospital for a period of six weeks. His left arm was in plaster. He then went onto crutches and subsequently onto a walking stick. 6. In February 1987 he underwent an operation for the removal of plates and screws in both arms and that procedure was complicated by infection which caused discomfort. He was obliged to undergo the operative procedure of arthroscopy on 13 March 1987, and a further procedure of the same kind in July 1987. There was an operative procedure by way of reconstruction of the knee joint in January 1988, and that included a bone graft. The screw in the right knee was removed in July 1988, and there was the further operative procedure of arthroscopy in February 1990. He underwent dental treatment and has had to undergo continuing physiotherapy and medication. 7. The respondent has been left with permanent disabilities. He suffers and will continue to suffer backache, pain in the right knee, pain in the left forearm, and headache. He suffers particular pain when sitting and standing for protracted periods. As a result of his disabilities he suffers restrictions and limitations of movement. In particular he is limited with respect to squatting, walking, lifting and sitting for protracted periods of time. 8. The knee is a particular problem and will continue to be a particular problem. He is likely to need further operative procedures. He will need a further arthroscopy. It is likely that the knee will continue to deteriorate by reason of arthritic changes over a period of years. This will cause further limitation of movement and an intensification of the pain which he suffers. It is likely to reach such a stage in a period of some 10 or 15 years that it will have to be replaced with an artificial joint. This may be adequate for the rest of his life, but there is some risk, perhaps not a great risk, that it will break down, and that in the end he will have to undergo an arthrodesis for the stiffening of the joint. 9. At the time of the accident, the respondent was employed in the Commonwealth Public Service as a clerk/assistant. He had joined the Public Service at the age of 28 years in 1980, and had worked continually in the Public Service since that time. Prior to joining the Public Service, he had worked at a number of jobs and had tended to move around from job to job. On some occasions he had been dismissed from his employment, and generally it can be said that prior to joining the Public Service he had no permanent or continuing job. 10. His career in the Public Service was attended by difficulties. His position was a base grade position, but nevertheless, his superiors at times were concerned by his performance. He had received counselling on a number of occasions for poor performance and lack of motivation. 11. Following the accident, and when he was able to resume some duties in June 1986, he was transferred to a city depot due to his restrictions on his ability to travel. About three months after that, he was transferred to the Repatriation Hospital and he continued to carry out general office work. In October 1986 he commenced work at the Commonwealth Employment Service at Morphett Vale and he remained there until February 1987. In May 1987 he returned to full-time work as a transport officer at the Repatriation Hospital. At this stage he was using a walking stick to aid his movements and he travelled to and from work either by taxi or Commonwealth car. 12. He was on compensation leave from July 1987 to July 1988 due to his difficulties in performing his duties as a result of his injuries. He then commenced employment at the Department of Social Security's Noarlunga office. His supervisor there considered that his performance fell short of the minimum standard required and he ceased employment in that position in September 1988; but he immediately commenced employment with the Commonwealth Employment Service where he remained until April 1989. Once again his performance did not measure up to the required standard. 13. The respondent gave evidence of the difficulties which he experienced in performing his duties as a result of his injuries. His employment with the Commonwealth Employment Service was terminated in April 1989 as a result of his inadequate performance. He then went onto compensation leave until August 5 1989 when he was retired from the Public Service on medical grounds. 14. It is not disputed that the respondent lost his job in the Public Service in consequence of the injuries sustained in this road accident. Mr Apps, who appeared for the appellant, contended, however, that the respondent's work performance both before joining the Public Service and afterwards, indicated that there was no assurance that he would have been able to keep his job in the Public Service until the retiring age, or indeed, that he would have wished to do so in view of his tendency to move from job to job, and that there was no assurance that if he left the Public Service he would be able to obtain continuing employment outside the Commonwealth Public Service. Mr Apps contended that in view of that factor and the residual earning capacity which the respondent undoubtedly has, the amount of $175,000 allowed for future economic loss was excessive. 15. The dominant feature of the case on this aspect, to my mind, is that as a result of his injuries this respondent lost the position which he held in the Commonwealth Public Service. That was his job; it was his job, presumably for as long as he chose to keep it, and was able to meet the required performance standards. Although he had received counselling for poor performance prior to the accident, there is no reason to suppose, in my opinion, that his performance would have fallen so low as to bring about his dismissal from the Public Service if there had been no accident. 16. It is true that he may have been made redundant from the Public Service in the future, or he may have chosen to leave. 17. Apparently before the accident he had given some thought to the latter course of action, but there is no reason to suppose that he would have left the Public Service unless, at least in his judgment, he was able to improve his position by so doing. 18. There is no doubt that in addition to having lost his position in the Public Service, the respondent is at a grave disadvantage in obtaining other employment on the labour market. He has been unable to obtain employment since his retirement from the Public Service and his Honour found, and in my opinion correctly, that the respondent has taken all reasonable steps to obtain such employment. He is severely limited in what he can do. That is apparent from the disabilities which I have already recited. 19. His Honour accepted the evidence of Dr Betts that the respondent's disabilities preclude him from any job involving repetitive lifting or bending, climbing stairs or active use of the limb. It is apparent from that that the areas of employment open to him are severely restricted by his injuries. That being so, it was inevitable that there be a substantial award for future economic loss. 20. His Honour appears to have made an error in a calculation. He calculated that on the actuarial figures placed before him, the net loss of salary capitalised by the appropriate multiplier would have resulted in a figure of $414,000 dollars for total and permanent incapacity. There was an arithmetical error in his Honour's calculation and that figure ought to have been $368,000. The final allowance however for future economic loss was not arrived at by way of arithmetical calculation and it does not appear that that error in any way affected the final allowance of $175,000 for future economic loss. 21. It is true that the figure of $175,000 represents significantly more than 50% of the amount which would have been allowed if the respondent had been totally and permanently incapacitated, making appropriate allowance for the adverse contingencies of life. 22. The respondent has a substantial residual earning capacity. Nevertheless, in all the circumstances which I have recounted, I have reached the conclusion that the amount allowed for future economic loss, although rather on the high side, is not beyond the reasonable scope of the discretion of the learned trial master. Calculations of this sort are necessarily imprecise and an appellate court has to allow considerable scope for the discretion of the assessing judge. I would not be prepared to interfere with the amount allowed for future economic loss. 23. Mr Cole, who appeared for the respondent, supported a cross-appeal by the respondent, complaining that the amounts allowed for future non-economic loss, both past and future, were inadequate. There is no doubt that the respondent has suffered severe injuries and has undergone a great deal of pain, suffering and discomfort in the past, and will continue to do so in the future. I think that the amount allowed was on the conservative side. Many judges would have allowed more. But again, the assessment of an amount for non-economic loss is necessarily an imprecise task. The trial judge has a special advantage in relation to this aspect of an assessment because he sees the plaintiff in the witness box and is able to form a far better opinion than the judges of an appellate court of the extent to which the plaintiff has suffered and the effect which it has had upon his life. 24. It must not be overlooked in considering the adequacy of the amount for non-economic loss that there are overlapping factors. There is no completely hard and fast division between economic loss and non-economic loss; the one impacts upon the other. The high amount of $175,000 allowed for future economic loss is obviously assessed upon the basis that the respondent will not be working for a large part of what would have been his working life. He, therefore, will not suffer from his injuries to the same degree as he would if he had to work regularly. He will be able to rest and to order his own actions, movements and activities in a way which will minimise the suffering from his injuries. No doubt his Honour took that into account in fixing the conservative figure which he fixed for non-economic loss. I would not be prepared to interfere with this aspect of the assessment either. 25. In my opinion, both the appeal and the cross-appeal should be dismissed.

JUDGE2 OLSSON J I agree. In my view, the totality of the assessment is well within reasonable bounds.

JUDGE3 DEBELLE J I agree with the reasons of the Chief Justice and Justice Olsson.