Dianne Versace v Peter Robert Messer No. 4188 Judgment No. SCGRG 93/859 Number of Pages 7 Assessment of Damages Personal Injury

[1993] SASC 4188

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA PERRY J

CWDS
Assessment of damages - personal injury - Appeal by plaintiff against award of damages in Magistrates Court - plaintiff 17 years of age at the time of the accident and suffered 'whiplash' injury to the neck - minimum subsequent disability but some pain and discomfort associated with restriction on movement - no substantial interruption to her employment as a computer programmer and operator, and subsequently as a secretary before trial - held that Magistrate erred in failing to make any award for future loss of earning capacity - held that even where there had been no interruption to work pretrial, an allowance for future loss of earning capacity may be awarded if the nature of the residual effects of the injury might deter employers from taking the plaintiff on - appeal allowed and assessment varied by allowing $5,000 for future loss of earning capacity.

HRNG ADELAIDE, 17 September 1993 #DATE 17:9:1993
Counsel for appellant:     Mr C. Cocks
Solicitors for appellant:    Palios Meegan and
   Nicholson
Counsel for respondent:     Mr M. Steele
Solicitors for respondent: Ward and Partners

ORDER
Appeal allowed.

JUDGE1 PERRY J The appellant appeals against a judgment awarded in her favour in the Adelaide Magistrates Court with respect to a claim for damages arising out of a road accident which occurred on 9 February 1990 when a car driven by the respondent collided with the rear of her stationary car. 2. The appellant was sitting behind the steering wheel and was thrown forward, so that her chest hit the steering wheel and she was then flung backwards. 3. Liability was admitted at the trial and the matter came on for assessment of damages only. 4. After hearing the evidence the learned Magistrate assessed the claim for non-economic loss on the basis of a figure of five on the scale in the Wrongs Act, which, when applied to the appropriate multiplier, gave rise to an award under that head of $6,200. He made an award for past economic loss of $120 and allowed $105 for special damages. He disallowed a claim for future economic loss. In the result he entered judgment for the plaintiff for the total sum of $6,425. 5. The appeal to this Court is as to one aspect of the judgment only, namely, the disallowance of the claim for future economic loss. 6. The plaintiff was born in 1972. She was 17 years of age at the time of the accident, and 20 years of age at the time of trial. At the time of the accident she worked as a part time checkout operator with Woolworths. The learned trial Magistrate clearly accepted her as a witness of truth. Indeed, his findings as to her credit were in complimentary terms:
    "I found her to be a direct witness. I thought she gave
    particularly plain and clear evidence at times, especially, for
    example, in terms of her description of the original accident.
    I agree with Mr Cocks that she showed no sign of exaggeration.
    She approached the task of giving evidence in an objective
    manner and I found her generally to be an acceptable and
    reliable historian." (page 6) 7. The learned Magistrate had the benefit of a number of medical reports relating to the plaintiff's injuries. As well evidence was given by two doctors who had examined her at the request of her own solicitors, a Mr Cohen, a general surgeon, and Mr Mills, an occupational physician. The respondent called a Mr Ingman, an orthopaedic surgeon. There was a degree of conflict in the medical evidence as between the parties. The learned trial Magistrate resolved that conflict in favour of acceptance of the views expressed, in particular, by Mr Cohen and Mr Mills to the extent that their opinions differed from the other medical evidence in the case. Quite properly neither counsel before this Court attempted to interfere with that preference on the part of the learned Magistrate and I decide the appeal on the basis of the opinions expressed by them, together with the other evidence accepted by the Court below. 8. On the basis of the medical evidence which he preferred the learned Magistrate concluded that the plaintiff had suffered a soft ligamentous tissue injury to the neck. 9. Immediately after the accident she did not attempt to drive home. Her father took her home and that night her general practitioner, a Dr Williamson, visited her. He advised her to rest and take disprin, which she did. The next morning she could not move the top half of her body and had pains in her arms and neck associated with headache. She rested at home for a few days. 10. She did not, at that stage, seek any active treatment. She missed some work from Woolworths but it did not amount to much. There was no visible bruising. The neck pain subsided within about a month to the extent that there was then a residual dull pain at the back of her neck and across her shoulders. 11. At that stage, that is soon after the accident, the plaintiff commenced a course at Flinders University which would have led to the grant of a Bachelor of Arts. She was able to attend lectures but occasionally went home when she felt sore and because of that she did miss some lectures during the year. Sitting down for too long appeared to bring on the symptoms, particularly the pain in the neck, but it was largely resolved with analgesics. 12. Towards the end of the year the appellant gave up the university course. The learned magistrate found that this was not attributable to the accident. In doing so he was clearly right. 13. The appellant then undertook what was described in evidence as an intensive training course in computers. Following her completion of that course, which was towards the end of 1991, she took up a position as a trainee computer operator with a business known as Accede Business Solutions. She stayed in the employ of that company for about twelve months. The manager of the business, a Ms Ingram, was called to give evidence by counsel for the respondent. She gave evidence that she had never noticed any difficulty in the appellant's physical ability to cope with her work in operating computers. 14. There was though an occasion when she lost some time over symptoms which seemed to be in the nature of a migraine headache, but that was not clearly attributable to any sequelae of the accident. Although she had 25 days off, that is, sick days off during the year, as Mr Steele pointed out during the course of the hearing before me, that was not shown to be attributable to the accident either. 15. Of course, an employer may not be aware of any particular difficulty that an employee may have in carrying out work, depending on the nature of the disability and how manifest it might be. The learned Magistrate found that, although she had the ability to cope with her work in computing: "That is not to say that, in the course of carrying out those duties, she may not, on occasions, endure pain as a result of an injury to her neck because of the need, particularly in some forms of computing, to hold her head and neck in a fixed position for relatively long periods of time." 16. That finding was clearly supportable by reference to the evidence in particular of Mr Mills. The learned Magistrate found, though, that she left the employ of Accede Business Solutions not because of any disability attributable to the accident, but because she wished to obtain skills in the computing field which were different from those and which were unavailable to her in that job. 17. She took up, at first, part-time and later full-time employment with Mr Terry Groom MP, the Minister for Primary Industry, and she was in his employ at the time the matter came to trial. It is true to say that her evidence did not disclose that she had any particular difficulty in answering to the demands of her employment with Mr Groom. 18. The learned Magistrate made the following observations and findings with respect to the claim for an award for future loss of earning capacity (page 4):
    "Mr Cocks has urged that when I come to assess damage,
    I include some component of future economic loss, or more
    precisely, perhaps not so much an award for future economic loss
    per se, but rather some global award to take account of a lost
    opportunity to gain employment in the future. The basis for
    that is that, with a dull ache in the back of the neck, liable
    to become significantly worse when carrying out some sorts of
    employment, that in the future there is a realistic possibility
    that the plaintiff will find herself in a position not able to
    accept a job offered to her. I have considered that submission
    by Mr Cocks, but I am persuaded to accept the contrary argument
    by Mr James. Given the record to date, it seems to me that the
    claim under this head advanced by Mr Cocks is too speculative.
    On any view of the medical evidence, the pain endured by the
    plaintiff in her neck is likely to diminish, rather than
    increase. The plaintiff's own history demonstrates an
    improvement over the course of time, although, to be fair, she
    says that the pain has been stable and not improving now for
    some 12 to 18 months, but even so, when I have regard to the
    work history that I have, when I bear in mind the evidence that
    some improvement can be reasonably expected, and when I bear in
    mind the probability that the plaintiff, over the course of
    time, has learned to cope better with this sort of pain, and is
    likely to continue to do so, then my view is that an award for
    future loss of opportunity is too speculative for me properly to
    be able to make an award." It is that finding or, at least the failure based on that finding to make an award for future economic loss, which is the only issue on this appeal. 19. At the outset of the appeal, I was referred to the statement of agreed facts which, apart from noting that the appeal against the learned Magistrate's award for past economic loss is wholly abandoned, goes on to set out that the appeal against the learned Magistrate's award for loss of future earning capacity is restricted to the argument that he erred in not make making an 6 award of damages for loss of future earning capacity, having regard to the loss of a chance, and there then follows some observations as to the basis upon which the matter was pursued in the court below. 20. As I pointed out to Mr Cocks during the course of his address, it seems to me that, it may well be that in confining the question on appeal to the issue whether the learned Magistrate erred in failing to allowing something for the loss of a chance, the appellant is giving away more than she should. I would have thought that it was at least arguable on the evidence, notwithstanding her good work record up to the time of trial, that there might be periods in the future when, although in employment, that employment may be interrupted by occasional days off or even more extended periods during which her headaches and neck pain might cause an interruption to work. 21. Of course, there is no support in her work history until the time of the trial for that view, but she is a young woman with her working life, or most of it, still ahead of her and I would have thought that the evidence was capable of or, at least arguably so, of supporting such a view. 22. Be that as it may, by loss of a chance, which is the only issue with respect to future loss of earning capacity which the Court has to address, I assume that what the Court is being asked to consider is whether an allowance should have been made for the possibility that the appellant might not be able to take up a particular job or may not be offered a particular job or be accepted for it by reason of her condition. 23. I have given careful attention to the argument put forward by Mr Steele against the view that anything should be allowed on this head. He contended that the learned Magistrate did not fall into error in failing to make any award for future loss of earning capacity. The gravamen of his argument centred on the fact that the medical evidence accepted by the learned Magistrate, in particular, the evidence of the expert witness who is perhaps best qualified to speak of occupational matters, namely, Mr Mills, did not support the view that there was any interference with the plaintiff's physical ability to discharge the range of duties that would accompany the occupations for which she appears to be fit. 24. He further placed great stress on the fact that the continuity of employment pre-trial in the absence of any evidence that her work had been interrupted or interfered with seriously by reason of the residue of her accident injuries sounded strongly against the propriety of allowing anything by way of an amount of damages against future loss of earning capacity. 25. When it was put to him that, even although there may not be clear evidence of an interference with the plaintiff's physical ability to discharge the sorts of duties which she may be called upon to perform, she may, nonetheless, be further down the queue when applying for jobs, he responded that her problems were not "bad problems" to present to a future prospective employer. He suggested that the work history would speak for itself and would be likely to deflect a prospective employer from holding against her the fact that she had had this accident and received some treatment, albeit minimal, for the neck injury. 26. In my opinion, while I recognise the strength of that argument, it is not right to assess the plaintiff's entitlement to an allowance for future loss of earning capacity solely by reference to her work performance prior to trial. 27. There are cases where a plaintiff has lost no time from work before trial, but he or she has, nonetheless, received an award for future loss of earning capacity, having regard to a proven disability and the possibility that it might manifest itself so as to affect the economic return from his or her earning capacity in the future. 28. It seems to me, with great respect to the learned Magistrate, that he fell into error when he observed: "Given the record to date, it seems to me that the claim under this head advanced by Mr Cocks is too speculative", and when he said later: "When I bear in mind the probability that the plaintiff, over the course of time, has learned to cope better with this sort of pain and is likely to continue to do so, then my view is that an award for future loss of opportunity is too speculative properly for me to make an award." The making of an award for future loss of earning capacity invariably involves an element of speculation. That is so in every case. 29. Once it is proved, however, that a plaintiff has a disability that will either be permanent or may take some time to resolve and that the disability extends beyond the date of trial, it is incumbent upon the court carefully to address the question whether or not that disability has been shown, on the balance of probabilities, to be likely to result in some impairment of earnings in the economic sense. 30. As I have already observed, the plaintiff has most of her working life still in front of her. The possibility that she may have to change employment or seek alternative employment for one reason or another is one which must be allowed for. It is a matter of common knowledge that plaintiffs, or persons who seek jobs, are commonly asked to disclose whether or not they have previously suffered an injury and to give details of it and its consequences. It is a fact of life that persons in that situation, even if they are capable of doing the job for which they may be applying for, in a physical sense, may well be at a disadvantage in securing such a position in the first place. 31. Furthermore, a person carrying even the relatively minor residue of a neck injury of the kind in question may feel the need, as this plaintiff has since the accident, when, for example, working at a computer keyboard to stand up or interrupt the work more often than would be the case with most employees in order to relieve some pain that may be the product of some stress occasioned by the employment. 32. In such a situation, a tendency to do that may well have a marginal effect of an adverse kind on the security of the plaintiff's employment which, in competitive times, could result in some loss. I do not think that the matters to which I have referred in this connection are speculative or unreal. I think they reflect the reality of the market place within which the plaintiff is likely to have from time to time to offer her skills. 33. In those circumstances, I consider that there should have been some award for loss of future earning capacity within the limited basis upon which the appeal is proceeding, that is, solely with regard to the loss of a chance of employment rather than with respect to possible interruptions to employment. 34. There is, of course, nothing to indicate how secure her present employment is and when, if at all, it may be that she will be in a position of at least looking for work. However, in all the circumstances, and given the limited basis upon which the appeal must be disposed of, I think it proper that an amount of $5,000 should be allowed for loss of future earning capacity, and that the award appealed from should be varied so as to allow for that sum. 35. That may appear to be a substantial amount in comparison with the quantum of the award for non-economic loss, but what must be remembered is that, in the first place, there is not necessarily always a correlation between the two and, in the second place, awards for non-economic loss have been substantially depressed by reason of the artificial formula which finds expression in the Wrongs Act. 36. The appeal will be allowed for the purpose of increasing the award by the sum of $5,000, which brings up a total sum of $11,425.