Drobek v Braun

[1999] NSWCA 264

CITATION:	Drobek v Braun [1999] NSWCA 264
FILE NUMBER(S):	CA 40534/98
HEARING DATE(S):	19 July 1999
JUDGMENT DATE:	19 July 1999
PARTIES :	Maria Drobek v Kay Braun
JUDGMENT OF:	Meagher JA at 24; Cole AJA at 1

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	DC 40534/98
LOWER COURT JUDICIAL OFFICER:	Puckeridge DCJ

COUNSEL:	Appellant: Mr P.D.E Grieve QC & Mr Frame Respondent Mr J. Poulos QC and Ms N. Abadee
SOLICITORS:	Appellant: Lamrocks Respondent: Abbott Tout
CATCHWORDS:
ACTS CITED:	Motor Accidents Act 1988 s 72
CASES CITED:	Moran v McMahon (1985) 3 NSWLR 700 at 718 Baldwin v Lisercic CA 20 April 1993 (Butterworths Unreported Judgments)
DECISION:	Appeal upheld; Judgment increased by $7097 to $200,219; Compromise in excess of that sum; Appellant to pay respondent's costs on solicitor and client basis.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40534/98

MEAGHER JA
COLE AJA

Monday 19 July 1999

MARIA DROBEK v KAY BRAUN

JUDGMENT

1    COLE AJA: The appellant, Maria Drobek, has challenged on appeal the award of damages made by Puckeridge DCJ in her favour. She contends that his Honour erred in relation to three aspects of damages, namely his assessment of past and future economic loss, his failure to assess damages in respect of superannuation and his failure to assess damages in respect of past and future requirements for domestic services. It is convenient to deal with each of these in turn.

2    Before the trial judge, liability was not in issue.

3    The appellant was injured on 24 April 1994 when a vehicle in which she was travelling was struck by another vehicle from the rear, pushing her vehicle into another ahead of her. She had previously been injured in a motor accident in 1989 but, as was found, had substantially recovered from the effects of that accident. The issue for the trial judge was to determine the effect of the 1994 accident upon the plaintiff appellant.

4    It has long been established that an appellate court should not interfere with the assessment of damages for personal injuries made by a trial judge unless it can be shown that the trial judge acted on a wrong principle of law, misapprehended the facts, or that the amount of damages awarded is so inordinately low or high as to be a wholly erroneous estimate of the damages suffered. (See for instance Moran v McMahon (1985) 3NSWLR 700 at 718 in the judgment of Priestley JAand the cases there referred to.)

5    The respondent claimed at trial that the plaintiff was fit for work. The trial judge, having regard to the evidence before him, including video evidence, found that

"Because of neck pain and discomfort, she does have an incapacity but such incapacity could not be considered as total."


and he acknowledged that
"Due to her age and accent, she would have difficulty in some areas of employment."

6    His Honour also held that he could not:

"reject entirely the medical evidence of the defendant and I do not consider that the plaintiff, due to the pain she is experiencing, is as incapacitated as claimed."

7    His Honour found that the 1994 accident had aggravated an underlying degenerative back condition and that the condition had rendered her totally incapacitated for work from the date of the accident to 30 June 1995, due to pain and restriction of movement in the neck and left shoulder pain. From 1 July 1995 his Honour considered the plaintiff was fit for work of a light nature. His Honour considered that in July of 1995

"Certain work duties would be within her capacity and that rehabilitation would have been of assistance in finding suitable work and I take that into account in determining her work capacity."

8    This latter passage refers to proposals which the plaintiff had rejected that she undergo rehabilitation. His Honour concluded

"I consider it appropriate to apply the percentage which I have found as to non-economic loss to determine the plaintiff's loss of work capacity as from 1 July 1995."

9    That percentage was thirty five per cent. His Honour also used that percentage in calculating loss of future earning capacity for the period of twelve years, being the period until the plaintiff achieved sixty years of age. The plaintiff's solicitors had instructed consultants to assume that the plaintiff would have retired at the age of sixty.

10    I can see no basis for disturbing the trial judge's assessment of damages for past or future loss of earning capacity. There was evidence on which the trial judge could find that the appellant did suffer a loss of earning capacity which was not total. Such assessment depends in part upon the judge's assessment of the witness, whom he found to be not as incapacitated as she claimed, being a person who tended to "focus on her symptomatology".

11    There was evidence from Dr Stephenson that as at May 1995 he

"was not able to arrive at a conclusion that she has any significant disability as a result of the motor vehicle accident on 24 April 1994. She should be fit to work as an assembler when work becomes available. She may need help from the rehabilitation point of view to get her back to work."

12    That is sufficient to ground the finding that from July 1995 she had only a partial incapacity for work. That she declined rehabilitation was also a factor which the trial judge took into account, as was his assessment of the plaintiff based in part upon video evidence which persuaded the judge that she was "guarded in physical activities which involved neck movements". His Honour was of the view that at the date of trial the plaintiff continued to suffer pain which was "constant but varying in intensity". Having found that there was the thirty five per cent reduction in loss of work capacity from July 1995, the trial judge was entitled to continue that percentage of incapacity to the future, in the light of his finding of constant but not work disabling pain in the neck and shoulder region from that date. His Honour was also entitled to determine damages for loss of future income earning capacity, based upon a retirement at age sixty in circumstances where the plaintiff's solicitors had asked their consultant to assume that fact.

13    There is also standing in the way of the appellant the decision of this Court in Baldwin v Lisercic, Butterworths Unreported Judgments, it being a judgment dated 20 April 1993. It has been formally submitted that that decision is wrong. However, until reversed, this Court should follow that decision.

14    It is necessary for a judge to make some percentage assessment of loss of earning capacity. It is difficult to ascribe in detailed reasoning why such a figure is assessed. Nonetheless the reasons for judgment disclose the trial judge's process of reasoning and I see no basis upon which this Court should interfere with that assessment.

SUPERANNUATION

15    The trial judge said

"I do not make any allowance for loss of superannuation in view of the findings that have been made as to loss of work capacity."

16    Plainly, the trial judge considered whether such a sum should be assessed. The trial judge assessed economic loss based upon a work life to age sixty on assumed earnings, the plaintiff not having returned to work, with a discount for vicissitudes of twenty per cent which was increased beyond the usual fifteen per cent in light of the plaintiff's degenerative back condition.

17    In my view, the judgment under appeal does not disclose any satisfactory basis for the plaintiff not receiving a superannuation component on loss of earning capacity as determined by the trial judge. The figure so calculated is $7097.

DOMESTIC ASSISTANCE

18    The trial judge rejected the claim for a past and future Griffith v Kerkemeyer component. His Honour said

"Dr Caspary in evidence said the plaintiff would have difficulty with some aspects of housework but no home care was prescribed."

19    His Honour rejected the evidence of a Miss Tait regarding the plaintiff's functional capacity to do housework, preferring "the medical evidence" to that of Miss Tait in determining the plaintiff's need for domestic assistance. His Honour's note of Dr Caspary's evidence was only "the plaintiff may have difficulty with some aspects of housework". His Honour continued

"It may be that some aspects of housework equates to heavy housework but difficulty with heavy housework does not in my view equate with a need for domestic assistance for housework. None of the other medical experts refer to the need. I also take into account that if the plaintiff sustained an aggravation of an underlying degenerative condition, which on the evidence would be a possibility, the plaintiff's husband would have provided assistance for the plaintiff in carrying out heavy household chores and was likely to carry out such chores in any event, even if there was no aggravation highlighted in the motor vehicle accident or by way of any other event. I therefore disallow the plaintiff's claim for past and future domestic assistance."

20    Dr Caspary's evidence was as follows. Question: would you support a complaint by her that she is unable to effectively carry out her housework. Answer: some aspects of her housework, the more difficult aspects of her housework I would accept.

21    This evidence supports the view that she had a capacity to perform housework although not in its entirety. The trial judge was entitled to infer that the more difficult or heavy aspects of her housework would, in any event, because of her degenerated back, have been performed by her husband.

22 I see no basis for disturbing the trial judge's finding rejecting the claim for damages for domestic assistance, particularly in the light of the provisions of s 72 of the Motor Accidents Act 1988.

23    In my view, the appeal should be upheld and the judgment increased by $7097 to $200,219. In light of an offer of compromise in excess of that sum, the appellant must pay the respondent's costs on a solicitor and client basis.

24    MEAGHER JA: I agree. The orders of the Court therefore are the orders proposed by Cole AJA.

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