Dighton v The Nominal Defendant (No 2)

[2012] SADC 1

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil)

DIGHTON v THE NOMINAL DEFENDANT (No 2)

[2012] SADC 1

Judgment of His Honour Judge Tilmouth

23 December 2011

DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES - METHOD OF ASSESSMENT

Assessment of damages for personal injury.  Turns on own facts.

Civil Liability Act 1936 (SA) s 52, referred to.
Marlec v J C Hutton Pty Ltd (1990) 169 CLR 638; The Commonwealth of Australia v Amann Aviation Pty Limited (1991) 174 CLR 64, applied.

DIGHTON v THE NOMINAL DEFENDANT (No 2)
[2012] SADC 1

The primary judgment

1. On 8 December 2011 the court delivered reasons for judgment in this matter in which it made primary findings of fact in relation to liability and certain consequential aspects relating to damages.[1]  The court did not proceed to enter judgment because the claimed heads of damages were not fully addressed by the parties, particularly the defendant.  The court therefore adjourned for further consideration the question of damages in order to enable the parties to make final submissions as to the monetary amounts that should be entered in respect of each of the claimed heads in light of the conclusions the court has already reached.

   [1]    Dighton v The Nominal Defendant [2011] SADC 187

2. During the trial the plaintiff formulated his calculations in some detail, converted into dollar terms under several heads, particularly with respect to past and future loss of earnings.[2]  The defendant did not respond to these at all, either in its written or subsequent oral submissions.  It has since done so in a written submission filed yesterday.

   [2]    Plaintiff's written submissions 11 July 2011 paras 148-223

3. The defendant has not for the better part contested the bases upon which the claims for damages are made and more particularly it has not disputed the calculations submitted by the plaintiff.  That being so it is now appropriate to consider the calculations and enter judgment in accordance with the reasons of the court.

   Non-economic loss

4. In the principle judgment the court assigned a numerical value of 23 to reflect the due entitlement to non-economic loss pursuant to s 52 of the Civil Liability Act 1936 (SA).[3]  It is agreed between the parties that the appropriate prescribed amount translates to a dollar figure of $46,480, so judgment will be entered in that amount for non-economic loss.

   [3]    At para [131]

   Past loss of earnings

5. The court concluded that projected pre-trial economic loss was to be reduced by 40 per cent in order to give due effect to adverse contingencies and the established work history and personal background of the plaintiff before the subject accident.  The court’s reasoning process was this:[4]

   [137]  At this point it is necessary to make further findings as to the cause and duration of work incapacity.  There is little organic or physical basis for Mr Dighton’s injuries but there remains a severe Post-Traumatic Stress Disorder.  Mr Dighton’s calculations make no allowance for adverse contingencies.  In fact they proceed on the large assumptions that Mr Dighton would remain continuously in full-time work at Booths on no lesser salary than he was earning when the accident occurred.  The evidence does not support either of those assumptions.

   [138]  In the first place there are the objective possibilities that less work might have been available as well as the prospects of illness, redundancy, accident, changes in the industrial climate, quite apart from ‘mere daily vicissitudes’ afflicting all people: Arthur Robinson (Grafton) Pty Ltd v Carter.  More to the point, the work and personal history of Mr Dighton over an extended number of years before August 2004, paint the picture of a rather restless and shiftless man.  As he told Dr Kutlaca on 8 July 2008 ‘I do what I want to do.  You’ve got to be happy in life’, so there is much force in Dr Kutlaca’s reflection that Mr Dighton: ‘typically preferred independence (pre-accident), as in autonomy, that is, per se and via interstate truck driving’.

   [139]  This characteristic emerged from the time he left the railways following which he not only moved from place to place, but also in and out of various vocations and places of employ.  By the time he settled into truck driving he consistently proved unreliable to the extent that he evinced a consistent pattern of failing to show for work at times, including the time he was at Booths.  His work rate and ethic were not particularly outstanding either, at any time after leaving the railways.  There was also the persistent use of cannabis which could only have served to reduce his working capacity and reliability, quite apart from unresolved anger management issues and depression.

   [140]    Based on Mr Dighton’s entire work and personal background detailed earlier, and briefly revisited above, he has failed to prove the probability that he would have remained continuously full-time at Booths right up to the date of trial, or that he would have secured no lesser employment elsewhere.  That background history strongly suggests he would not.  As the High Court recently pointed out in Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd, a degree of estimation is involved where the precise loss cannot be identified.  Doing the best one can in light of all this material, the court proposes to reduce the projected pre-trial economic loss by 40 per cent in order to give due effect to the above findings, the identified pre-trial problems and the other adverse contingencies.  As a result, based on Mr Dighton’s own figures, a potential award for pre-trial economic loss would appear to lie somewhere between $166,320 and $208,440.  The parties should be at liberty to make further submissions as to the precise calculations before final judgment is entered.  As the appropriate sum was lost progressively, Mr Dighton appears to be entitled to interest of at least 2 per cent, but once again the parties should be heard on this question as well: Wheeler v Page & Harris.

   [4] [2011] SADC 187 [137-140] (footnotes omitted)

6. The plaintiff calculates loss of earnings up to the commencement of the trial on 1 May 2011, based upon proven average gross weekly earnings.  These calculations were adjusted to account for amounts earnt since (and assuming the poultry business made losses), as calculated from his wages records, Exhibit P27.  This came to approximately $1,320 per week.  Multiplied by a period of 210 weeks since May 2007 when he last worked, that produces a gross figure of $347,400.[5]  That sum will be reduced by 40 per cent in accordance with judgment of the court.  It is therefore appropriate to enter judgment for past loss of earnings in the sum of $208,440.

   [5]    Plaintiff's written submission 9 December 2011 para 7, and 11 July 2011 para 172

   Interest on past earnings

7. The court previously indicated that Mr Dighton would be entitled to interest of at least 2 per cent in relation to past economic earnings.[6]  However, plaintiff’s counsel has persuaded the court that the appropriate rate is 6 per cent.  As the loss was progressive, that must be reduced by half to 3 per cent.  Based on the calculations presented by the plaintiff the court proposes to enter a judgment in the lump sum of $18,000 for interest on past economic loss.[7]

   [6]    At [140]

   [7]    Plaintiff's written submission 9 December 2011 para 9

   Future loss of earning capacity

8. The base calculations produced by the plaintiff with regard to future loss of earning capacity are not in issue as such.  The plaintiff originally projected future loss of earning capacity to retirement age of at least 65, subject only to a multiplier of $713 to reflect present day value.[8]  The critical findings in this respect were that the projected total was to be reduced by two-thirds on account of adverse contingencies and for other reasons articulated in the following passages taken from the primary judgment:[9]

   [144]  On the whole of the evidence it is not possible to be satisfied on the balance of probabilities that Mr Dighton would have continued to work continually until the age of retirement or that he would have achieved better remunerated employment.  On the contrary, given his work history and the personal problems and attributes that were mounting up, the job at Booths was by no means secure.  It is quite evident from various sources in the evidence before the court, that before this accident Mr Dighton had for many years suffered from mood swings and depression, had difficulty in eating and sleeping properly, was a long-time heavy user of cannabis and had low levels of energy and drive, quite apart from repeated unreliability in the work place.  The employment history made it likely he would find truck driving work opportunities from time to time and especially in times of financial need and especially when more abundant seasonal work was available, but that history attests that it would not be consistent or long standing.  He clearly held an overly optimistic view of his abilities and capacities for promotion.  As an average and consistently unreliable employee in respect of showing up for work, he was never likely to achieve a status beyond that of an employed truck driver.

   [145]  Most probably there would be longer periods of unemployment between jobs as he grew older.  Given the difficulties of obtaining employment following work related injuries, his advancing age and the competitive job market, full-time employment to age 65 or even 60 was inherently unlikely: Wade v Allsopp.

   [146]  At the same time, the fact that he was able to hold down at least some work is evidence of a degree of earning capacity.  It might be acknowledged there is a strong body of evidence that he will not work again, but on the other hand an equally strong body of expert evidence suggests the condition will improve once this case is finalised.  It must also be factored in that Mr Dighton exaggerated the true extent of his incapacities.  The film produced by the defence, although not particularly conclusive, shows that he has a reasonable range of movement when he wants to.  Many of his personality defects pre-date the subject accident.  As time goes on and these proceedings are finally behind him, his condition will more than likely improve.  That prospect is on all the medical evidence to be measured in terms of years given the established course and persistence of the present pain and depressive cycle.

   [147]  On the other hand it may be accepted that there will be continual problems undertaking ‘heavy manual labour’, which necessarily limit the scope of jobs realistically open to him and heavy truck driving is now undoubtedly beyond reach, especially since the heavy vehicle licence was taken from him.  Of course he is not qualified for all forms of employment, but there is insufficient evidence to conclude that he cannot do menial or light manual work at the very least.

   [148]  The probabilities are that the job at Booths might have pertained for the short to mid-term, but it was never going to be a permanent or guaranteed source of enduring work.  Mr Dighton was likely to have taken significant periods off work in order to deal with the other mounting pressures and distractions in his life which were beginning to compound by mid 2005, manifested by the outburst over child support and a rebellious attitude in relation to relatively minor issues in the workplace, even though most of that sprang from the WorkCover claim.  Presently there are 23 years remaining before age 65.  Based on the same rates of pay as received at the date of the accident, Mr Dighton presents a case for continued employment on the same basis to age 65 or even age 70, subject only to a multiplier of $713.00 to reflect the present day value for every dollar earned per week.

   …

   [150]  Acknowledging once again that a degree of estimation inherently defying precise calculation is involved, the various considerations and contingencies spoken of earlier dictate a projected loss of future earning capacity converted into dollar terms premised on actual earnings as of the date of the subject collision, are appropriately reflected by a reduction of two thirds.  For the same reasons mentioned earlier, the parties are entitled to make further submissions as to the precise calculations involved with the benefit of these findings in mind.

   [8]    Plaintiff's written submissions 11 July 2011,  paras  173-198

   [9] [2011] SADC 187 (footnotes omitted)

9. Defence counsel accepted the multiplier of $713 was appropriate as of 1 May 2011.  However, the defendant points to the following additional passage in the primary judgment:

   [154]  The court is far from convinced that Mr Dighton is wholly unable to carry out routine every day tasks should he want to.  The video footage – as brief as it is – suggests he can perform such tasks at times.  Mr Dighton gave evidence that his son provided occasional assistance such as gardening, mowing lawns, building work, cleaning and the like.  These were the kinds of jobs you would expect to be done by any son of his age.[10]  Except for outdoor activities involving heavy work, Mr Dighton has otherwise simply not proven a case for gratuitous services.  I propose an award based on a need for assistance of two hours per week by his son Bradley, who from the time he lived with him at Kapunda until he moved out of Waitpinga at the end of 2007, rounded up to say $6,000.  The same applies to the future, that is two hours per week at $22 per hour, for say three years by when Mr Dighton is either likely to have recovered or alternatively his pre-existent defects were likely to have overcome him anyway.

   [10]   The plaintiff’s son ‘Brad’ was born in 1989 and was not called to give evidence

10. The submission appears to be that the last sentence in the paragraph just quoted constitutes a conclusive finding confirming the plaintiff’s entitlement to future loss of earning capacity to just three years post trial. In this respect the submission misunderstands the central conclusions drawn in the principle judgment and the limited role this particular conclusion had in the context of voluntary services.

11. The critical finding for the present discussion was that the projected future economic loss was to be discounted by two-thirds to reflect all the relevant adverse contingencies identified in the previously quoted passages.  One of those contingencies was the prospect of recovery.  I was only able to assess that chance ‘measured in terms of years’ given the inconclusive state of the evidence on the question.[11]  The three years attributed to the award for future gratuitous services did no more than reflect the degree of probability that recovery might occur within that time, thereby increasing Mr Dighton’s capacity to look after himself and undertake everyday domestic tasks.  As pointed out by the High Court in Marlec v J C Hutton Pty Ltd:[12]

    questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof.

    That conclusion did not intend to make any wider finding on the balance of probabilities that there would be total recovery of earning capacity within three years post judgment.  Quite obviously had that been the case, the assessed level of damages for future economic loss would have been a relatively straight-forward exercise

    [11]   At para [146]

    [12] (1990) 169 CLR 638 at 643

12. The appropriate measure of loss of earning capacity post-trial measured in dollar terms comes to $941,160.[13]  Judgment will be entered in the sum of $315,288.60 to reflect the two-thirds reduction considered appropriate for the reasons specified.

    [13]   Plaintiff's written submission 9 December 2011, paras 10-13

    Past and future superannuation

13. The plaintiff made an uncontested submission that he was entitled to superannuation benefits based on a ‘universal figure of 9 per cent’, said to be reflective of standard statutory entitlements.  The plaintiff calculates 9 per cent on a base figure of $523,728.60 made up of the respective awards allocated to past and future loss of earnings.  As those sums have already in-built reductions on account of contingencies, it is therefore proposed to enter judgment in the sum of $47,135.57 under this head, as calculated by the plaintiff.[14]

    [14]   Plaintiff's written submission 9 December 2011 paras 14-18, and 11 July 2011 paras 199-201 and see Winfield v Jones [2010] SADC 24 at [299]

    Interests on past superannuation

14. By parity of reasoning interest on past loss of superannuation benefits calculated on the same base figure at a rate of 6 per cent, expressed as a lump sum of $3,000 will be allowed.

    Gratuitous assistance

15. The court has already made a finding that Mr Dighton was entitled to a rounded sum of $6,000 for gratuitous assistance at $22 per hour for two hours per week.  As to the future, the plaintiff is likely to be able to look after himself and his daily chores after three years, especially if the admission to the Adelaide Clinic occurs beforehand.  On this basis I accept the defendant’s calculation of $6,336 expressed in present day values and I allow that sum accordingly.

    Interest on past care

16. Interest on the amount of past care on a lump sum basis calculated at approximately 6 per cent, will be allowed in the sum of $1,000.

    Future medical care and expenses

17. The court has already allowed for an admission to the Adelaide clinic ‘in order to bring forward and therefore enhance the chances of such recovery’.[15]  The average of the estimated cost of $45,000 will be allowed for that purpose.

    [15]   At para [156]

    Future medication

18. The evidence as to the cost of future medication and to a lesser extent future medical treatment, was rather sparse.  However the critical finding was that Mr Dighton would be likely to remain on a medication regime for at least ten years.  It was not readily apparent why he was taking so much medication.[16]  The plaintiff’s projected figure of $22,950 is predicated on life-time costs based on $100 per month for a full continuing medication regime.  Given the primary findings a broad-axe sum of $8,000 is allowed under this head.  For the same reason a further sum of $4,800 is allowed for attendances on the plaintiff’s medical practitioner.

    [16]   At para [156]

    Special damages

19. Finally past special damages were already allowed at $4,500.[17]  The particular passage in the principle judgment purporting to award the full sum was erroneous for the reasons identified in the earlier passage.[18]

    [17]   At para 132

    [18]   At para [159]

    WorkCover redemption

20. The court has determined that any judgment it is prepared to enter in favour of the plaintiff must be reduced by the amount of the WorkCover redemption previously paid to him of $197,598.33.  Neither counsel was prepared to grasp the nettle set for them in the following passage of the primary judgment:

    [173]  There is one qualification to be added to this conclusion and it is this.  As the redemption payment did not allocate specified amounts to the specific injuries, so much as what is attributable to the noise induced otalgia plainly forms no part of the current claim for damages.  The court will hear the parties as to what the consequences of this state of affairs is and as to what the appropriate reduction should be.

21. No materials are before the court placing any value on the noise induced otalgia component of the redemption sum.  Based on the findings in the principal judgment the major component of the workers compensation redemption payment must necessarily have related to the sequelae of the subject accident, and the plaintiff regarded it as a very temporary problem.[19]  Doing the best one can applying the principles set out in The Commonwealth of Australia v Amann Aviation Pty Limited,[20] on the limited material available an arbitrary broad-axe sum of $1,000 will be deducted from the redemption sum in order to account for the otalgia condition.

    [19]   T35.35-36.17

    [20] (1991) 174 CLR 64 at 83

    Summary

1. Accordingly judgment will be entered under the respective heads of damage as follows:

Non economic loss	$46,480.00
Past lost of earnings	$208,440.00
Interest on past lost of earnings	$18,000.00
Future loss of earning capacity	$315,288.60
Past and future superannuation	$47,135.57
Interest on past superannuation	$3,000.00
Past assistance	$6,000.00
Future assistance	$6,336.00
Interest on past care	$1,000
Future medical care	$49,500
Future medical expenses	$8,000
Special damages	$4,500.00
Sub total	$713,680.17
Less WorkCover redemption	$196,598.33
TOTAL	$517,081.84

1. Judgment is therefore entered in the sum of $517,081.84 accordingly.  The parties are entitled to be heard on the question of costs.