Donnelly, G.W.T v Baker, J.M

C A T C H W O R D S

Damages -appeal against quantum of damages - role of appellate

court - no appellable error demonstrated.

Davies v.

Duffryn Associated C o l l i e r i e s

L i m i t e d

( 1 9 4 2 )

601

Miller v.

Jennings

( 1 9 5 4 )

9 2

CLR

1 9 0

Gamser

T h e Nominal

Defendant

( 1 9 7 6 - 7 7 )

1 3 6

CLR

145

P a u l and Another v.

R e n d e l l

( 1 9 8 1 )

3 4

ALR

5 6 9

aX APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN

CAPITAL TERRITORY

GEORGE WILFRED THOMAS	DONNELLY	..	l '
V.

JENNIFER MARGARET

BAKER

F.C. No. ACT G 5 1 of 1985

C o r a m :

E v a t t ,

Gallop

and

B e a u m o n t

JJ.

11 Apri l	1 9 8 6
C a n b e r r a

\ '

I N THE

FEDERAL

COURT

AUSTRALIA

A U S T R A L I A N

C A P I T A L

T E R R I T O R Y

)	No. ACT G 5 1 of 1985

D I S T R I C T

R E G I S T R Y

)

" ,

1 i

D I V I S I O N

G E N E R A L

ON APPEAL

FROM

THE

SUPREME

COURT

T H E

A U S T R A L I A N

C A P I T A L

T E R R I T O R Y

BETWEEN:

GEORGE

WILFRED

THOMAS

DONNELLY

A p p e l l a n t

AND

J E N N I F E R MARGARET

BAKER

R e s p o n d e n t	.-
I .

M I N U T E

O F

O R D E R

JUDGES

MAKING

ORDER

E v a t t ,

G a l l o p and

B e a u m o n t JJ.

DATE OF ORDER	:	11 A p r i l 1986 .	_ .
I

WHERE MADE

: Sydney.

THE

COURT

ORDERS:

(1)

T h e appeal 1s dlsrnlssed

w i t h c o s t s .

NOTE:

S e t t l e m e n t

and

e n t r y

o r

o rde r s

i s d e a l t

w i t h by O r d e r 36 of

t h e Federal C o u r t

R u l e s .

t -

IN THE FEDERAL COURT

OF AUSTRALIA )

AUSTRALIAN	CAPITAL	TERRITORY	)	I ,
.

)

NO. ACT G51 Of 1985

' .

REGISTRY	DISTRICT	)
)

DIVISION

GENERAL

)

ON APPEAL FROM THE SUPREME COURT OF

THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:

GEORGE WILFRED THOMAS DONNELLY

Appellant

AND :

JENNIFER MARGARET

BAKER

Respondent

CORAM: Evatt, Gallop and Beaumont JJ.

REASONS FOR JUDGMENT

GALLOP J.

1 1 APRIL 1986

Thls is an appeal against quantum

of an award of

damages in the sum

of $224,895 in an action for

damages for

personal lnjurles brought by the appellant in the

Supreme

Court of the Australian Capital Territory as

a result of a

motor vehicle accident on 2 Aprll 1983.

The trial of the

action commenced before the Chlef Justice

of the Supreme

Court on 24 June 1985 and concluded on 27 June 1985.

The

!' ,

Chief Justice delivered his reserved decision on	1 August
1985.

The individual assessments which his Honour made

related to the following specific heads:

I 0 a

1 .

Pain and suffering etc.

25 ,

000

past loss of earnings

32,360

Future Loss of earning capacity

119,500

Past out of pockets

8,481

Past medication

2 ,

000

Water bed

700

Tax paid on workers' compensation	7,777
Past domestic servlces	8,000
Future medical expenses	1,000
Future medication expenses	5,000
Future domestic services	8,000
Future chiropractic services	1,000
Interest: on past

damages

general

4,080

17,500

wage loss	L
.._

less worker's compensation

1 542

6,780

medication

455

2,000

$224,895

The assessments appealed against were those listed below with consequential adjustments

to those heads In

respect of interest thereon ln the event

of this court

substituting some other figure for that assessed	by the
trial judge.

Pain and suffering etc.	25,000
Past loss of earnings	32,360

Future loss of earning capacity

119,500

Future medication expenses	5,000
Future domestic services	8,000
Future chiropractic services	1 ,000

Before this court interferes with an award

damages It should be satisfied that the trial

~udge

acted on

I -

a wrong principle

of law or misapprehended the facts

or, for

these or for other reasons, made a wholly erroneous estimate	;-
I

of the damage suffered. It

is not enough that there is a

balance of opinion or preference.

The scale must go down

heavily against the figure attacked

if the appellate court

is to interfere either on the ground of excess or

l ‘ Q	c	3.
i

insufficiency (Davies v. Duffryn Associated Collieries

Limited [l9421 AC 601 per Lord Wright at p.616-7,

cited with

approval by Dixon CJ and Kitto J. in their joint judgment

Miller v. Jennings (1954) 92 CLR 190 at 195-6, and by

Barwick CJ in Gamser v. The Nominal Defendant (1976-77) 136

CLR 145 at 148).

Where an attack is made

on the amount of

damages this court must look

to the findings of fact of the

trial judge. These

principles should be steadily born

mind by this court in appeals

of this nature.

The appellant was born on

27 December 1946, thus

he was a little over	36 years of age at the date of the	L i
I

/subject accident and 381 years of age at the date of the

commencement of the trial.

The events giving rlse to the

injuries sustained by the appellant, as found

by the trial

judge, were that

he hit his head

on the door jamb of his

vehicle and also struck his right shoulder, right elbow

and

right knee.

There was no fracture or dislocation in the

right shoulder blade but a diagnosis

of right subluxation

the shoulder and a brachial plexus traction Injury

m the

cervical spine was

made.

The injuries and disabilities as found by the

trial judge were traumatic labyrlnthltis with a

13% residual

loss of hearing in the right ear, concussion, fracture of

the right sixth

rib, whiplash-type neck in-~ury,

nerve leslon

in the right thigh,

and nerve lesion in

the right elbow

involving the right ulnar nerve. The appellant has

continued to experlence pain in the right shoulder, neck

and

4 .

back and developed pain in other areas such as the rlght

thigh and right knee. He

now usually walks with the

aid of

a stick.

His physical condition has been largely overtaken

by personality and psychological factors and

it is these

factors whlch were a very promlnent lssue

in the assessment

of appropriate damages.

His Honour found that the appellant

suffers from

no recognisable form

of mental illness and

has

not suffered any brain damage.

In a very well presented argument, counsel for the

appellant submitted that the trial judge had made errors

fact in various respects

and that those errors had caused

wholly erroneous estimate	of the damage suffered	by the
appellant.

First, it was submitted that his Honour

had fallen

into error in his assessment of damages for loss

f earning

I. .

capacity. The amount assessed by hls Honour was $119,500.

His Honour sald that he accepted the view

of Dr Knox, a

L --

' /

consultant psychiatrlst, that the appellant's severe degree

of psychiatric impairment was such that he should

.be

regarded as unfit for employment In the general sense for a

period of three years into the future. His Honour found

that even in that period the appellant would retain some

degree of earnlng capacity in that

he would contlnue to work

at a garage doing books

of account and that his activities

at the school canteen

and the Bush Fire Brigade, although

not actually income generating, were indicative of a

residual earning capacity.

It was submitted that his Honour

had

misapprehended the evidence

of Dr Knox in his finding

that

I '

'	D	'	5.
1	l

the appellant's psychiatric impalrment would incapacitate

hlm for employment for a period

of three years into the

future.

l .

Dr Knox had examined the appellant at the request

of his solicitors

on 26 March 1985 and his report of

24 April 1985 was in evidence.

At the end of that report

Dr Xnox offered the following opinion:

"Your client's long term prognosis remains

in doubt.

While I expect your client

to remain incapacltated for

a period of several further years, there 1s some

prospect that he could resume a state

of health

allowing hlm to undertake employment after a period

years.

This will depend on both your client's physical

and psychiatric rehabilitation."

Dr Knox also gave oral evidence on behalf of the

appellant. He was asked to

elaborate upon his report. He

expressed the opinion that the appellant was likely

continue "with quite a severe degree

of psychiatric

impairment for a period of

two or three years, probably

longer ... and (would) remain

with some chronic psychiatric

difficulty flowrng out of his underlying personality, but

there is scope for some degree

of improvement Ln the longer

I '

term perhaps".

Having read the medical reports and the evidence

of Dr Knox, I am not persuaded that the trial judge made any

error in his synoptic expression

of the effect of that

evidence.

It has to be borne in mind that at the

date of

trial the appellant was actually engaged in some Work at a

service station and endeavouring to improve his knowledge

and capacity in that field

of work.

One also has

to bear in

mind that the trial judge had

to make a start somewhere

calculating fair and reasonable compensation

for the

appellant's loss of earning capacity. There was other evidence before his Honour that the appellant would eventually return to employment. The appellant was examlned

by Professor R.F.

Jones, Director of the Department of

Rehabilitation Medlcine at Prince Henry

and Prince of Wales

Hospltals, on 28 May 1985 on behalf of the defendant. In

1 .

his report of 14 June 1985 Professor Jones said in relation

to the appellant:

"Much of his posturing at the present time

is due to

exaggeratlon of his symptoms and the motivatlon for

this exaggeratlon is suspect.

I believe that he 1s

fully intent on returnlng to work and intends to manage

a service station."

And later In the report:

n ... from a purely physlcal point

of view I regard him

as eminently employable,

and that he has worked himself

into a situation where

h regards himself as being

unable to work as a

bus driver and in view

of his

stated inability to return

to this type of work, then

one would direct him toward clerical	duties or small
business management."

Professor Jones gave evidence at the trial

nd he

adhered to the contents

of his report. In cross-examination

he said that he would have

great difficulty accepting that

the appellant was a trier and that the appellant seemed to

be emphasising his disabllity rather than mlnimlsing

it. He

sald that the appellant should be assisted in passing hls

clerlcal asslstant examination

and then either supported

into finding employment through the Commonwealth Public

Service, or glving him skills in small business because that

is obviously the way he wishes to

g .

Furthermore, he said

that he believed that the

stress of litigation was a factor

in his problem.

I .

Dr Alex Gilandas, a clinical psychologist

of the

Department of Psychiatry, University

of Sydney, also gave

evidence on behalf of the defendant. He had made a

neuropsychological assessment of the appellant on 19 June

1985 and his report was in evidence. He concluded that the

appellant was suffering from post-traumatic syndrome which

, '

can reasonably be attributed to his motor vehicle accident.

In his report and in his evidence he assessed the

appellant's intellectual functioning as falling within the

bright normal range, and that there

had been no change

intellectually as

a result of the accident.

Having regard to all the evidence at the trial it

was, in my view, both fair

and reasonable to allow the

appellant compensation

on the basis of total incapacity for

a period of three years and partial incapacity thereafter.

Accordingly, I would reject the first submission made	on
behalf of the appellant.

Counsel for the appellant further submitted that the trial judge was wrong in his allowance

of the amount of

overtime which the appellant

had been working as a bus

driver prior to the subject accident.

His Honour said that

' ?

he was not prepared

to assess loss of earning capacity

either in the past or for the future

on the basls that

overtime of 224 hours per week in the

service station would

have been available throughout because he

was somewhat

sceptical of the evidence of Mr Wignall, the service station

proprietor, which seemed	to his Honour unduly weighted	in
favour of the appellant.

l
i	l

I	1 ' .	I
i

It was further submitted that activity at the school canteen and ln the Bush Fire Brlgade were not

indicative of residual earning capacity	as his Honour had
found.

Finally, In relation to

loss of earning capacity

it was submitted that his Honour's finding of fact that

8 ,

Dr Corry's evidence that the appellant's	chances of getting	, .
'. ,

suitable work through

one of the rehabilitation services was

less than 50% carried an implication that there must be some

chance of getting work was

wrong on the evldence and should

not have been taken into account In the assessment under

this head.

Dr Corry, Consultant in Rehabilltatlon Medlcine,

examined the appellant on 25 May 1984 and 29 March 1985.

His reports of 23 October 1984 and 6 June 1985 were in

evldence and Dr Corry was also called to give evidence on

behalf of the appellant. In the final paragraph of his

report of 6 June 1985 Dr Corry expressed the opinlon that

the appellant's present severe symptoms were likely to

continue untll he was able to reconstruct some meaningful

existence for himself. He said the appellant's own

recognition of this was reflected

in his search for

alternative employment, that the -appellant should be

assisted through a rehabilitation program and that

e should

be referred to the Australian Government Rehabilitation

Service

for

assistance.

r ;

In his evldence Dr Corry outlined the

difficulties facing the appellant in obtalning part-time

employment.

He sald that if the appellant attended the

( L

i	9 .,
i	I

Commonwealth Rehabilitation Service his prospects

of success

in being placed in work would be something

less than 50%.

For the purpose

of calculating loss of earning

i	capacity In the future	his Honour accepted the loss of
i

earnings as a bus driver admitted in evidence In the form

a schedule of wage loss and, allowing for

5+ hours per week

I I	overtime, fixed upon a figure	of $250 per week net for a
1

period of three years, resulting in a figure

of $37,500.

For the future beyond those three

years he assessed the

l	appellant's loss of earning capacity	at $100 per week for	24
i

years, applied a discount rate

of 3%, yielding a figure

approximately $89,700 which he reduced	by 20% for
contingencies, leaving about $72,500.	He acknowledged that

the discount for contingencies was a relatively high one based upon the strong possibllity that the appellant's way

of life and personality were such that he stood

to run into

psychologlcal problems in any event even if he had not been

injured. Re also took into

account that the commencement of

the actual loss was postponed for three years. He then

incorporated into the conglomeration

of prophecles that the

appellant was likely

to earn something for some tlme from

employment outside his activities as a

bus driver. He

I	I	adopted the sum	of $112.50 per week which the appellant was
!

earnlng at the service station at the time of his injuries

and accordingly allowed $2,700 up to 16 September 1983.

His

Honour did not appear to allow any amount for the period

17 September 1983 to 31 December 1984.

(I shall return to

this aspect of his Honour's assessment

in dealing with past

economic loss.)

For the period 1 January 1984 to the date

;

10.

of trial his Honour did

allow a loss of $50 per week, making

a further $4,000 in respect of past loss and a total of

$6,700 for loss of earnings for work other than as a

bus

driver from the date

of the accident to the

date of

judgment.

For the future he allowed $50 per week for a

period of five years and discounted to a	lump sum of	l .,
r
;

$10,000.

His calculations, therefore, for loss of future

earnlng capaclty were based upon the aggregate

of the sum of

$37,500

for the three year perlod and the dlscounted figure

of $72,500, making a total of $110,000, and $10,000 for loss

of earnings from work other than as a

bus driver from the

date of judgment for a period

of five years. There appears

to me to have been a small mathematlcal error in that the

sum of $119,500

should have read

$120,000.

Counsel for the appellant in his turn submitted an

alternative method of calculatlon of future economic loss

based on the circumstances which he contended existed at the

date of trial.

He submitted that the correct approach was

to regard the appellant

as totally and permanently

Incapacitated as a bus driver. Adopting that approach, the correct calculation of the appellant's loss of earning

capacity as a

bus driver is, on the evidence, 27 years at

$283.32 per week, using a discount figure

of 3%, yielding

$275,103.72

less 15% for contingencies, i.e.

$41,265.60,

giving a correct award

of $233,838 in lieu of the sum of

$110,000 in fact awarded in respect	of loss of earning
capacity as a bus driver.

In relatlon to the loss of earning capacity other

,-.

than as a

bus driver, counsel contended that the correct

a a b G

11.

calculation is, on the evidence, 5 years at $112.50 per week

namely $27,281.25, less $5,200 (being $20 per week for 5

years for free petrol

and motor vehicle services), giving

$22,081 which, discounted by 15% for contingencies,	gives an	..
I :;

end result of $18,769 in lieu of the S10,OOO awarded for

loss of future earning capacity other than as a

bus driver.

I am not persuaded that the trial judge made any error in his findings of fact upon which he based his

calculations for loss of earning capacity.

One must bear in

mind and, indeed, keep in the forefront of one's

consideration of a trial judge's assessment

of damages, that

the trial judge

had the advantage of seeing and hearing not

only the appellant, but also the many medical experts

who

were called to give evidence, together with all the other evidence in the case such as video films. Furthermore, the trial judge had to make some intuitive assessment of a

proper sum to compensate the appellant for loss of earning

capacity. Re did that and applied the proper actuarial

calculations to arrive at a capital sum which he regarded as

fair compensation for the appellant, no doubt bearing in

mind that actuarial calculations are no more than rough and

ready guides to what is proper compensation for future

economic loss, particularly where there	is a residual
earning capacity.

As the Judicial Committee

of the Privy Council

observed in Paul and Another v. Rendell (1981) 34 ALR 569

, i

per Lord Diplock at

p.571,

the assessment of damages in

,. .

actions for personal injuries is not a science. An

assessment of future economic loss involves a double

12.

exerclse

I n

t h e

a r t of

prophesylng

n o t

o n l y w h a t t h e f u t u r e

h o l d s

for

t h e

i n j u r e d

p l a i n t i f f

b u t

also

w h a t

h e

f u t u r e

would

have

held

for

him i f he

had

n o t

been

in jured .

I n

view

t h e t r i a l j u d g e c a r e f u l l y a p p r o a c h e d

t h e assessment

damages

f o r loss of

e a r n i n g c a p a c i t y ,

made

p r o p e r

f i n d i n g s

f a c t and

the appropr i a t e a s sumpt ions

based

upon

those

facts

a n d a r r l v e d

a t a

f igu re well

w i t h i n

the

range

damages

under

th i s

head .

f u r t h e r of

t h e

o p i n i o n t h a t

have assessed damages on

the bas i s of

t o t a l

loss of working l i f e as contended for by

e a r n i n g c a p a c i t y f o r t h e

rest

o f t h e a p p e l l a n t ' s

counsel

for

t h e a p p e l l a n t

would

have

been

wholly

erroneous on

the

ev idence .

would

o n l y a d d t h a t

t h e m a t h e m a t i c a l

error

o f

$500

should be

i g n o r e d f o r

t h e p u r p o s e s

t h l s a p p e a l .

I t

was

n e x t

s u b m i t t e d

t h a t

t h e

t r i a l

j u d g e ' s

assessment of

$32,360

f o r past loss of

e a r n i n g s was

wrong.

For

t h i s p u r p o s e h i s

Honour

had

recourse

t h e e v i d e n c e

showing

t h e

loss

e a r n i n g s a s

bus d r ive r be tween

the

I I .

time

i n j u r y and

t h e d a t e

tr ial wl thou t overtlme a s

$27,645 and

with

5+ h o u r s per week overtime, as $31,004.

allowed

$30,000,

d e c l i n i n g

t o assume

t h a t t h e p l a i n t i f f

would

have

worked

a l l

t h e

overtime

a v a i l a b l e d u r i n g t h a t

I .

pe r iod .

t h e n

t o o k

i n t o

account

t h e p l a i n t i f f ' s

a d m l t t e d

r e c e i p t

$4,340

d u r i n g t h a t p e r i o d w h l l e w o r k i n g a s

c l e r k

i n

t h e P u b l i c S e r v l c e , d e d u c t e d t h a t

sum

from

t h e

$30,000,

y i e l d i n g a f 'igure

$25,660,

t o which h e added

$2,700

for

loss

o f e a r n i n g s a t

t h e s e r v i c e

s t a t ion

from

t h e

t ' .

d a t e of

i n j u r y u n t i l

September

1983 and a

f u r t h e r sum of

I .

: qv i

13.

$4 ,000 for the period 1 January 1984 to the date of trlal,

yielding a total figure of $32 ,360 .

It is not clear, either from hls Honour's reasons

for judgment

or otherwise, why his Honour did not allow

L i 1 - 1

anythlng for loss of earnings at the service station between

16 September 1983 and 1 January 1984.

The appropriate

amount was on the evidence approximately

$604 less $72.20

received, namely $532 .80 .

Counsel for the respondent

conceded that the

failure-to allow some amount for the

period 16 September 1983 to 1 January 1984 must have been an oversight. Acceptlng that to be so, thls court should not

interfere by tinkerlng with this head of damage.

It would

have been qulte appropriate for his Honour to take account

of the vicissitudes of life between the date

of Injury and

the date of trlal and the amount involved is too

inconsequentlal in a total award

of $224,985 for this court

to interfere.

In my opmion the assessment of $32 ,360 for

past loss of earning capaclty was appropriate	and reasonable
m all the clrcumstances.

The next submission on behalf of the appellant was

that the sum

of $ 2 5 , 0 0 0

for general damages was

on Its face

appellably low and should- have been in the order

$40 ,000 .

The assessment of damages for pain and suffering, loss of enjoyment of life past and future, inconvenience and all the other matters that are required to be taken into account

under the head

of general damages is largely an intuitive

exercise. Looked at in the range of damages which might

have been awarded under this head and having due regard

- - - - -

-	-
-

3 c

14 .

the appellant's injuries, treatment and dlsabilities,

I am

not persuaded that any error

has been demonstrated.

It was next submitted that

in his allowance of

$1,000

for future chiropractic services

and $5,000 for

future medication expenses, hls Honour

had taken an

erroneous view

of Dr Knox's opinlon of the appellant's

likely future employability. For the reasons which I have

already indicated, I reject the proposition that his Honour

made any error in hls assessment

of Dr Knox's evidence and

accordingly would not interfere with his

Honour's

assessments under these

heads.

The same may be said in relation

to the last

submission of counsel for the appellant that the sum

$8,000 awarded by his Honour for future domestic services was wrong. In relation to this claim his Honour found that the evldence of the appellant's wife did not fully justify

the claim as made

of full time care

and assistance for

periods of several weeks followlng the appellant's various confinements to hospltal together with an allowance at the rate of 2 t hours per day at other times and Into the

future.

He found that her evldence did not justify the

claim made apart from the periods after confinement to

hospital.

Taking into account current domestic rates

and

applying the principles enunciated in Hodges

Frost

( 1 9 8 4 )

53 ALR 373, his Honour allowed

5 hours per day for 20 weeks

in the past, making a round total

of $4,000 and for the rest

of the period in the past allowed

$ 4 0 per week, rounded that

total out to $4,000 and allowed a total

of $8,000 for past

?-*U c

15.

domestic services.

That assessment was not the subject

any submission on the hearing of the appeal.

His Honour

then applied the figure

of $40 per week for a period

three years into the future undiscounted, rounded that

figure to $6,000 and added a lump sum of $2,000 for the

future after that period	of three years, making a total	of
$8,000 for the future.

The submission on behalf of the appellant was that

the sum of $40 per week should have been allowed for

years discounted. Likewise,

I -would reject that submission

for the same reasons, namely, that the trial judge does not

appear to have made any error in his assessment

of he

future incapacity of the appellant and hence his need for

care and assistance from his

wife.

Finally, it is desirable to look at the total sum of $224,895 for which judgment was entered

in the

appellant's favour. Looked

at as a global sum, that figure

in my opinion represents a fair

and proper award of damages

for the injuries sustained by the appellant and their consequences. Furthermore, it accords with the general level of awards of damages for personal injuries in the

Australian Capital Territory.

I would dismiss the appeal with costs.

I N THE

.FEDERAL

COURT

OF AUSTRALIA )

AUSTRALIAN

CAPITAL

TERRITORY

1 1

DISTRICT	REGISTRY	)	NO.	ACT G 5 1 Of 1985
1

GENERAL DIVISION	1
)

ON APPEAL FROM THE SUPREME COURT OF THE

AUSTRALIAN

CAPITAL

TERRITORY

BETWEEN:

GEORGE

WILFRED THOMAS

DONNELLY

A p p e l l a n t

AtVD :

JENNIFER MARGARET BAKER

R e s p o n d e n t

C o r a m

W a t t ,

Gallop

and

B e a u m o n t JJ.

Date :

11 A p r i l

1 9 8 6

REASONS

FOR

JUDGMENT

Beaumont J.

I agree w i t h t h	e R e a s o n s of	Gallou J.	-	and w l t	~~~h	t h e	order
proposed.

[1986] FCA 119

4 Nov 1986