Evans, M.H. v Pilarski, A

Re: MAYLENE HUGO EVANS
And: ADAM PILARSKI
No. ACT G68 of 1987
FED No. 772
Negligence - Damages

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Gallop(1), Davies(2) and Neaves(1) JJ.

CATCHWORDS

Negligence - apportionment of liability - role of appellate court - no new question of principle.

Damages - assessment of general damages and loss of earning capacity - role of appellate court - no new question of principle.

Pennington v Norris (1956) 96 CLR 10

Watt v Bretag (1982) 41 ALR 597

Karamalis v Commissioner of South Australian Railways (1977) 15 ALR 629

Nicol v Allyacht Spars (1987) 61 ALJR 640

Unwin v Clarke (unreported, 18 April 1984)

Combridge v White (unreported, 22 March 1985)

Bolton v Pangallo (unreported, 24 April 1987)

Davies v Powell Duffryn Associated Collieries Limited (1942) AC 601

Miller v Jennings (1954) 92 CLR 190

Gamser v The Nominal Defendant (1976-1977) 136 CLR 145

Paul and Another v Rendell (1981) 34 ALR 569

HEARING

CANBERRA

#DATE 3:6:1988

Counsel for the appellant: Mr R. Giles Q.C.

with Mr J. Hartigan

Solicitors for the appellant: Abbott Tout Creer &

Wilkinson

Counsel for the respondent: Mr A.P. Whitlam Q.C.

with Mr M. Inglis

Solicitors for the respondent: Scott Campbell Sheils

ORDER

The appeal be allowed.

The judgment of the Supreme Court be set aside and in lieu thereof that there be judgment for the plaintiff in the sum of $270,418.10.

The cross-appeal be dismissed.

The plaintiff pay the defendant's costs of the appeal and the cross-appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

The unsuccessful defendant in an action for damages for personal injuries has appealed against the judgment of the Supreme Court of the Australian Capital Territory in favour of the plaintiff for the sum of $365,914.80 on the ground that the learned trial judge erred in assessing the plaintiff's share in the responsibility for his damage at 10 per cent, and further on the ground that the amount awarded in respect of loss of earning capacity was excessive.

The successful plaintiff has cross-appealed against that part of the judgment by which the plaintiff was found to be contributorily negligent and on the further ground that the awards for general damages and loss of earning capacity were insufficient.
The trial judge assessed the various heads of damages as follows:

Loss of future earning capacity 250,000.00 Past loss of earning capacity 66,596.00 Fox v Wood component 19,438.70 Agreed out of pocket expenses 12,065.85 Agreed domestic care and assistance 5,000.00 General damages 45,000.00 Interest 8,471.45 ---------- $406,572.00 Less 10% net damages $365,914.80

Apportionment of liability

Section 15(1) of the Law Reform (Miscellaneous Provisions) Ordinance 1955 provides:

"15. (1) Subject to this section, where a person suffers damage as the result partly of his own fault and partly of the fault of another person or other persons, a claim in respect of that damage is not liable to be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect of the damage shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage."

The principles to be applied by an appellate court on an appeal as to apportionment of liability were laid down by the High Court in Pennington v. Norris (1956) 96 CLR 10 at pp 15-16, where the High Court (Dixon C.J., Webb, Fullagar and Kitto JJ.) said:

"Much latitude must be allowed to the original tribunal in arriving at a judgment as to what is just and equitable. It is to be expected, therefore, that cases will be rare in which the apportionment made can be successfully challenged."

More recently in Watt v. Bretag (1982) 41 ALR 597 the majority of the High Court (Gibbs C.J., Mason and Brennan JJ.) said, in dealing with the Wrongs Act 1936-1975 (SA), at p 599:

"Section 27a of the Wrongs Act gives a very wide discretion, and much latitude must be allowed to a trial judge in deciding what is just and equitable (Pennington v. Norris, at 15-16). It is only in exceptional circumstances that it is right for an appellate court to interfere with a trial judge's apportionment, as this court said in A V Jennings Construction Pty Ltd v. Maumill (1956) 30 ALJ 100 at 101: 'Accordingly re-consideration of the question in the exercise of an appellate jurisdiction is subject to the limitations imposed by the principles which govern all appeals against judgments given in the exercise of discretions, principles which this court has stated repeatedly in recent cases. Consequently, as Lord Simon remarked in (British Fame (Owners) v. Macgregor

(Owners) (1943) AC 197) at 198-9, "the cases must be very exceptional indeed in which an appellate court, while accepting the findings of fact of the court below as to the fixing of blame, none the less has sufficient reason to alter the allocation of blame made by the trial judge".' The same approach has been adopted by the Privy Council: Ramoo son of Erulapan v. Gan Soo Swee (1971) 3 All ER 320 at 327, per Lord Cross."

See also Karamalis v. Commissioner of South Australian Railways (1977) 15 ALR 629; Nicol v. Allyacht Spars (1987) 61 ALJR 640.

Those principles have been applied by this court in Unwin v. Clarke (unreported decision of 18 April 1984); Combridge v. White (unreported decision of 22 March 1985) and Bolton v. Pangallo (unreported decision of 24 April 1987).
As the trial judge observed, there was a lack of precision in the evidence about the facts of the accident, but he made the following findings. The plaintiff was a Senior Constable in the Australian Federal Police Force and was on duty in Hindmarsh Drive in the early hours of Sunday, 12 August 1984. He and his colleague, Constable Curtis, had finished patrolling the O'Malley area and were proceeding in an easterly direction in Hindmarsh Drive towards Red Hill. The plaintiff was driving the police vehicle. The vehicle passed over a small crest, descended into a slight dip in the road and then, when about fifty to a hundred metres from the bottom of the dip, they noticed that some boxes were scattered across the lefthand lane and across about half of the off-side lane. The plaintiff swerved to the right towards the centre of the road to avoid the boxes, drove on about 250 metres or so and then decided to return in order to clear the obstruction from the carriageway. Having done so, he brought the vehicle to a halt facing in a westerly direction, immediately opposite or south of the area where the boxes were strewn. They were scattered in an area roughly circular in shape and about five metres in diameter.
The plaintiff engaged the blue flashing light on the police vehicle, and left the engine running with the headlights illuminated. There were some roadworks in progress immediately to the south of where the plaintiff brought the vehicle to a halt. These roadworks were being carried out for the purpose of adding a second lane for westbound traffic in Hindmarsh Drive. Where the vehicle came to a halt it had its offside wheels about half a metre onto the bitumen road surface. The rest of the vehicle was on the gravel shoulder to the south of the bitumen. There was no artificial lighting immediately in the vicinity. The nearest street light was some five hundred metres to the west, although there was a single spotlight on a builder's shed about one hundred metres northwest of where the plaintiff's vehicle came to a halt. There were no buildings or structures anywhere near the front of the police vehicle which would have had the effect of reflecting the light from the headlights towards the centre of the roadway. Furthermore, the position of the front of the police vehicle was more or less opposite the western most edge of the area where the boxes were strewn. Hence the headlights had little effect, if any, in lighting up the road surface in the area of the boxes. The blue flashing light, however, did have some such effect. It was sufficient for the plaintiff and his colleague to see their way to remove a number of boxes and throw them into a ditch on the southern side of the roadway in the vicinity of the new roadworks. There were still some boxes remaining on the carriageway. The plaintiff went to walk across in the direction of those remaining boxes. He took three or four steps and can remember no more.
The trial judge stated that Constable Curtis was somewhat confused in relation to some aspects of his evidence, but he accepted that Constable Curtis was still on the southern side of the police vehicle when he heard the sound of a collision and saw the tail lights of a vehicle proceeding from a point more or less opposite to the police vehicle in an easterly direction. That vehicle subsequently returned to the scene and turned out to be the defendant's vehicle.
Just prior to the accident a Renault sedan was proceeding in a westerly direction down Hindmarsh Drive. A passenger in the Renault noticed the blue flashing light from quite a long distance away. The Renault reduced speed and, as it approached, the passenger saw the plaintiff silhouetted against the sky on the northern side walking towards the centre line and towards the Renault. She also saw the police vehicle on the lefthand side of the west-bound carriageway. The Renault came to a halt about ten to fifteen metres from the police vehicle. There was then "a terrific thud" and the plaintiff ended up lying on the roadway in front of the Renault.
It is unnecessary to set out his Honour's further findings of fact except to say that he was satisfied that it was the vehicle driven by the defendant which struck the plaintiff when he was on the northern side of Hindmarsh Drive in the off-side lane near the centre line. His Honour noted that the defendant did not give evidence.
His Honour found that the defendant failed to keep a proper lookout and that she had allowed herself to become inattentive driving home at that hour of the night to the extent that she did not notice the obvious flashing blue light on the police vehicle, which at the time of the collision was no more than twenty metres distant. He found that she simply failed to see the plaintiff at all and an alert driver keeping a proper lookout, like the driver of the Renault sedan, would have seen the plaintiff in sufficient time either to pull up completely or to slow down and take effective evasive action.
On the issue of contributory negligence, the defendant had relied upon evidence that the plaintiff failed to wear his police headgear, a white cap with chequered band, failed to wear the reflective clothing and to carry a torch with which he had been issued. His Honour found that at that hour of the night vehicles were likely to be travelling on Hindmarsh Drive at a high rate of speed and, although there were no streetlights in the vicinity, it was by no means assured that motorists would drive on high beam. He found that in venturing out on to the roadway in order to clear it of the obstruction caused by the boxes, the plaintiff was performing a commendable public duty, but the fact was that he was placing himself at considerable risk from passing motor traffic. He further found that by the time the plaintiff had reached the northern side of the carriageway, he was placed in a predicament with the defendant's vehicle approaching him from the west and the Renault approaching from the east. In approaching the Renault, the plaintiff turned his back to traffic approaching from the west, a highly dangerous manoeuvre in the circumstances.
His Honour found that the plaintiff, in attempting to clear the obstruction from the roadway without availing himself of the torch and reflective clothing which he had with him, failed to take reasonable care for his own safety, failed to keep a proper look out for the traffic which was approaching, or alternatively when he became aware of that traffic, he failed to take effective evasive measures by getting out of the way. We note that the plaintiff had denied in cross-examination that he had any reflective clothing with him, but his Honour found otherwise. He found that the overwhelming preponderance of fault lay on the defendant, but that it was just and equitable that the damages of the plaintiff be reduced by ten percent having regard to the respective contributions of the plaintiff and the defendant to the injuries sustained.
Counsel for the defendant made no challenge to the trial judge's primary findings of fact. He submitted that the plaintiff placed himself in the path of the defendant's vehicle with his back to the vehicle in a position where there would be no silhouette of the plaintiff to assist the defendant and no direct illumination of that part of the roadway. It was submitted that the presence of the police car parked on the opposite side of the road, substantially off the carriageway, would have given no warning of the presence of the plaintiff even assuming that the blue light was flashing on the police vehicle. It was submitted that the failure of the defendant to see the plaintiff in dark clothing with his back to the defendant in the other circumstances referred to was quite explicable and involved only a very slight degree of negligence.
In answer to those submissions, counsel for the plaintiff submitted that the plaintiff turning his back on the traffic approaching from the west did not cause the accident. The defendant did not see the plaintiff at all, whereas the driver of the Renault, which had been proceeding in the opposite direction, saw the flashing blue light and the plaintiff and was able to stop. Counsel for the plaintiff stressed the performance of public duty by the plaintiff to clear the obstruction from the roadway. He also stressed that the plaintiff posed no risk to the defendant or anyone else (Nicol v. Allyacht Spars (1987) 61 ALJR 640 at 643).
In our view, this is not one of the very exceptional cases where an appellate court, while accepting the findings of fact of the court below as to the fixing of blame, nonetheless has sufficient reason to alter the allocation of blame made by the trial judge. He saw and heard the witnesses called on behalf of the plaintiff and his task in making primary findings of fact was rendered more difficult by reason of the absence of recollection by the plaintiff, the confusing aspects of Constable Curtis' evidence, the fact that according to her evidence the driver of the Renault sedan saw the plaintiff on the northern side of the roadway walking towards the centre line and towards her vehicle at an angle but then lost sight of him and did not see the defendant's vehicle hit the plaintiff, and, of course, the fact that the defendant gave no evidence. In the circumstances we do not think that the trial judge's apportionment of liability should be disturbed. It is implicit in what we have said that we reject the plaintiff's submission that he was not guilty of any contributory negligence.
We have reached that conclusion without taking into account the argument on behalf of the plaintiff that the performance of public duty by the plaintiff is a relevant factor. It is at least arguable that the performance of public duty is one of the factors which should be taken into account in assessing, pursuant to s.15(1) of the Law Reform (Miscellaneous Provisions) Ordinance 1955, the fault of a person who suffers injury.
Damages
The defendant's ground of appeal on the issue of damages was directed to the award of $66,596 for past loss of earning capacity and $250,000 for future loss of earning capacity.
The plaintiff's cross-appeal contested the amounts for general damages and loss of earning capacity.
The relevant findings of fact were as follows. The plaintiff was born on 14 November 1947 and went to school to intermediate certificate level in Sydney. After two or three unsettled years during which he commenced and terminated an apprenticeship as a fitter and turner, he commenced work in Melbourne for a company engaged in electrical contracting and he carried out work as an electrician's assistant on construction sites for a period of about fourteen years. During that time he gained considerable experience and increased his skills, but he did not gain any technical qualifications. During the latter half of the period he was working as a foreman. Despite his comparative success in the electrical contracting industry, the plaintiff maintained an interest in joining the police force. He first applied to join the then ACT Police Force in about 1966 but he was underweight. He kept applying unsuccessfully until 25 June 1979 when his weight was sufficient for him to be accepted into the then Commonwealth Police Force. That Force was soon after amalgamated with the ACT Police Force and the plaintiff became a member of the Australian Federal Police in 1981. He completed a course at the Federal Police College in 1981, was assigned to general duties and in June 1983, after four years of service, became a First Constable. In August 1984 he applied for and was accepted as a candidate for examination to become a Senior Constable. Those examinations were due to be held in October 1984, but because of his injuries he could not sit for them.
The plaintiff married in 1968 and has three children aged 18, 14 and 11.
There was no dispute that the plaintiff suffered very substantial injuries. He was rendered unconscious by the collision and came to in hospital about twenty-four hours later. He was confused and apprehensive. He was in great pain. He came under the immediate care of Dr A.C. James, a plastic and reconstructive surgeon. By September 1984 Dr G. Danta, a neurologist, began regular review of the plaintiff as well. The major injuries were a penetrating injury to the back of the left thigh and a brachial plexus traction injury on the right side. Dr James operated almost immediately to tie the shredded ends of the sciatic nerve and several days later a skin graft was performed, the graft being taken from the back of the left calf. In addition to the major injuries then found, the plaintiff sustained general bruising and lacerations over much of his body, more particularly in the groin area. The plaintiff spent three weeks in hospital, the last week being in a wheelchair. He was discharged in a walking-frame but even so could not walk without assistance from his wife. The wife had attended the hospital several times daily to assist in his care and this regime continued for about a month after his discharge. By that time the plaintiff was able to attend to a few of his needs himself. He spent about four months mainly resting in the house. The major area of pain was in the left shoulder and in the left leg. There was considerable restriction of the movement of the left shoulder and the injury to the sciatic nerve in the left leg had given him an unstable ankle with resultant foot drop. Whilst he was learning to walk the plaintiff would frequently trip over his toes. When he attempted to arise from a sitting position it would take him some time to gain any control at all over his ankle.
Dr James had predicted that further operative treatment would be necessary and in January 1985 the plaintiff was re-admitted to the Royal Canberra Hospital and a nerve graft was performed, the donor site again being in the left calf. The plaintiff was discharged after seven days in hospital and the lower half of his left leg remained taped up for two weeks. The plaintiff found that there had been no beneficial change.

In March 1985 a further operation was performed by Dr James by way of a tibial tendon transfer. A tendon was transferred from the back of the left calf or ankle to the front of the foot in order to give the ankle more stability. On this occasion the plaintiff, after a week in hospital, had the lower leg in plaster for some six to seven weeks. When it was removed he found that the ankle still felt weak and stiff, but thereafter it improved. By mid-1985 the plaintiff became particularly concerned about pain in the left knee and he was referred to Dr Peter Morris, an orthopaedic surgeon. Dr Morris performed an arthroscopy on the knee on 28 December 1985 and found Grade I retropatella chondromalacia and an undamaged but lax anterior cruciate ligament. There was no damage to the meniscus. Dr Morris did not think that any surgery was necessary.
There was little dispute on the medical questions, and the defendant did not call any evidence. It is unnecessary to recite the medical evidence in detail. Dr Danta's role appears to have been essentially an investigative one and his findings and those of Dr James and indeed of Dr Morris coincide. When examined by Dr Danta on 21 May 1986, there was marked weakness of the left biceps and left brachio-radialis muscles and diminution of the reflexes in those areas. There was also numbness over most of the left hand extending into the radial side of the forearm and upper arm to below the shoulder. In the leg there was still virtually total paralysis of dorsi-flexion of the left foot and toes and eversion of the foot. Inversion and flexion were also found to be weak and there was no ankle jerk. There was also numbness over the back of the left foot, the front of the lower leg to just above the knee and at the back of the left thigh in the area of the scarring. When last seen by Dr Danta on 15 June 1987, the findings were much the same but the plaintiff complained for the first time about headaches, which he said developed about two weeks before the examination.
Accepting those findings of fact, we are of the opinion that the award of $45,000 for general damages is well within the range and should not be disturbed. This disposes of the aspect of the plaintiff's cross appeal directed to general damages.
With regard to the plaintiff's past and future loss of earning capacity, his Honour reviewed the evidence and made the following findings of fact.
Dr Smyth saw the plaintiff on several occasions for the purpose of assessing his fitness for police duties. After thirteen weeks, when the plaintiff was regarded as totally unfit, Dr Smyth considered that the plaintiff rather than be retired ought to be given the benefit of the doubt and allowed to continue on sick leave. He continued to certify him for sick leave purposes until May 1985. By that stage Dr Smyth had come to the conclusion that the plaintiff was not fit for any job that could be found for him within the Force. In his evidence, Dr Smyth explained that he took into account that if the plaintiff continued as a uniformed member of the Force, then it might be expected that on occasions he could be called upon in an emergency to render duties for which he was not fit.
The plaintiff has not worked since his injury, except for one day when he attempted to carry out work for an electrical contractor. He found that at the end of the day he was in considerable pain.
His Honour found that the plaintiff is and will remain unfit for employment in that area, but not totally incapable of carrying out some of the work of an electrical contractor. He found that the plaintiff cannot be expected to engage in employment which involves working off a ladder, working overhead or kneeling and squatting. With regard to his physical disabilities his Honour found that he still has numbness in the left calf and pain and restriction of movement in the ankle, his disability in his shoulder makes it impossible for him to lift any weights much beyond waist level and he is restricted to the extent to which he can rotate his left wrist. There is increasing pain in the lower back, but his Honour thought that the plaintiff exaggerated that somewhat. His Honour did not accept that the plaintiff had a degenerative back condition that was likely to produce symptoms without the subject injury. He found that in the total picture the plaintiff was incapable of holding down a job in a clerical position, unless the position was such that would enable him to get up from time to time when he found that he could no longer tolerate the pain in the ankle and back.
His Honour found that the plaintiff, before his injury, was a keen and active man about the house and also participated in recreational shooting and fishing. He still keeps up these activities to some extent. As far as gardening is concerned, however, his Honour accepted his evidence that he can now do little more than potter around the garden and heavy digging is beyond him. He helped a neighbour put up a pergola but his help was mainly supervisory. He still maintains a workshop of sorts at his home and he still carries out some maintenance on his car.
His Honour found that with the assistance of his friends the plaintiff still does quite a lot of fishing and some shooting, and in fact he is the Secretary of the fishing club at the Queanbeyan RSL Club.
His Honour accepted that the plaintiff had not sought to gain employment since his injury because he hoped that arrangements were about to be made within the Australian Federal Police for the re-engagement on selected duties of persons who had been retired on medical grounds. His Honour found that the plaintiff had hoped to be taken back in some clerical capacity. His Honour went on to say that the real dispute in the case was not so much as to the plaintiff's capacity for work in the past, but what was likely to happen in the future. His Honour concluded that there was no real possibility that the plaintiff would be re-engaged in the Australian Federal Police on restricted duties. He took into account that the plaintiff had, through his own efforts, become a modest but apparently successful investor in real estate.
His Honour found that although the plaintiff's clerical skills have always been quite limited, he has the capacity to look after the affairs of the fishing club, to run a family company and to invest in a number of real estate projects. He has the capacity to supervise building projects to some extent and to carry out the less onerous aspects of home and building maintenance. He can also carry out a limited range of electrical installations and repairs.
His Honour concluded that the plaintiff would be able to put the damages that he was to receive to use in a way which would make his limited earning capacity productive and took that factor into account.
His Honour's approach to the assessment of damages was to consider two alternatives. First, one might try to ascertain the rate of residual earning capacity which the plaintiff still commanded and thereby assess the net loss of earning capacity on a periodical basis into the future. On the other hand, the plaintiff might be regarded as totally disabled and his future loss be calculated on that basis with a discount to allow for a contingency of his being able to generate actual income in the interim. His Honour regarded the latter method as more appropriate in the circumstances and observed that it was not really contended on behalf of the defendant that the plaintiff should not have been regarded as totally incapacitated up until the date of trial. Accordingly, his Honour considered the usual discount for contingencies of 15%, applied a discount of about one-third and proceeded to consider the capitalisation of the agreed net rate of pay including overtime and bonuses of $480 per week. Applying the 3% discount tables over a period of 20 years into the future, his Honour arrived at a figure of $380,000 and discounted that figure for the contingencies already mentioned to a round sum of $250,000.
With regard to past loss, his Honour adopted the agreed figure to 20 February 1986, namely $30,810.00, regarded the plaintiff's loss as total and continuing from 20 February 1986 to the date of judgment, and applying the agreed rates, awarded a further sum of $35,786.00, making a total for past loss of earning capacity of $66,596.00.
It is convenient to deal first with the award for past economic loss. It was conceded on the appeal that the trial judge was entitled to act upon the concession that the plaintiff was totally incapacitated for work until 20 February 1986 and that the sum of $30,810 for that period was correct. On the other hand, it was submitted that his Honour was wrong in his observation that it had not really been contended on behalf of the defendant that the plaintiff was not totally incapacitated up to the date of trial. It was submitted that even on the plaintiff's case he was not totally incapacitated between 20 February 1986 and the date of trial.
It is necessary to review the evidence. The plaintiff's evidence, which was accepted by the trial judge, was that he had not made any application to the Australian Federal Police for re-employment until six weeks before the trial because he had been hoping that appropriate arrangements would be made for re-engagement on selected duties of persons who had been retired on medical grounds. He said in evidence that if the application which he had made for re-engagement was not successful, he would look for another job in a clerical capacity or as a storeman either in the public service or in private enterprise, but preferably in private enterprise.
In his report of 4 July 1986, Dr Gytis Danta, neurologist, had stated that whilst the plaintiff could possibly hold down a job requiring light duties, it would be difficult to find a suitable one for him in the face of his current disabilities. In his evidence he said in cross-examination that by November 1984 the plaintiff had a capacity to do clerical work of a sedentary nature in which he could sit and stand from time to time and not be continuously on his feet.
Dr D.A. Smyth, forensic medical officer with the Australian Federal Police, said in evidence that the plaintiff could perform clerical duties not requiring sitting down for long periods but he was incapacitated for work as a policeman.
Dr A.C. James, plastic and reconstructive surgeon, said in cross-examination that the plaintiff was quite fit for sedentary work and had been so from about September 1985.
It does appear that at the trial counsel for the defendant submitted that it was a proper approach to regard the plaintiff as totally incapacitated until the latter half of 1985 and, from then until the date of trial, the plaintiff had a work capacity which he should have exercised. That that was the contention on behalf of the defendant was acknowledged by counsel for the plaintiff in response to a question from the trial judge when he agreed that it was not conceded by the defendant that the plaintiff was totally incapacitated between 20 February 1986 and the date of trial.
We are satisfied that the trial judge's observation that it had not been contended on behalf of the defendant that the plaintiff should not have been regarded as totally incapacitated up until the date of trial was, in the circumstances, incorrect. Hence the figure awarded for the period between 20 February 1986 and the date of judgment, namely $35,786 should be reviewed in the light of the undisputed evidence that the plaintiff had some residual earning capacity during that period. The trial concluded on 25 June 1987 and judgment was delivered on 17 September 1987. Thus the period involved is about 19 months.
There was evidence at the trial that the levels of salary for clerical staff in the Australian Public Service started at $15,543 per annum gross. Applying that figure as some guide to the assessment in money terms of the plaintiff's residual earning capacity between 20 February 1986 and the date of judgment, it is appropriate to reduce the amount awarded for past economic loss by about $17,000. Accordingly, we assess the sum for past earning capacity between 20 February 1986 and the date of judgment, in round figures, at $18,000.
With regard to future loss of earning capacity, the amount of $250,000 awarded by the trial judge appears excessive by whatever means the loss is to be assessed. After discounting the calculated figure of $380,000 by what his Honour described as the usual discount for contingencies of 15 percent and applying a total discount of only one-third to the figure of $380,000, his Honour has only allowed eighteen and one-third percent for the plaintiff's residual earning capacity.
In assessing damages for future loss of earning capacity his Honour again adopted the agreed weekly sum of $480, which included overtime and bonuses, and disregarded any contingency for future promotion as also agreed. The award of $250,000 amounts to an earning capacity of $88 per week, or, in other words, $392 per week less than the agreed rate of pay of $480 per week. It was submitted that a differential of $392 per week was grossly excessive.
It was urged on behalf of the defendant that a differential of between $180 and $250 per week would provide a more appropriate basis upon which to assess damages under this head. A differential of $250 per week would yield a figure of $197,000, of $200 per week would yield $157,600 and of $180 per week would yield $141,840.
Before this court interferes with an award of damages it should be satisfied that the trial judge acted on a wrong principle of law or misapprehended the facts or, for these or for other reasons, made a wholly erroneous estimate 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 insufficiency (Davies v. Powell Duffryn Associated Collieries Limited (1942) AC 601 per Lord Wright at p 616-7, cited with approval by Dixon CJ and Kitto J. in their joint judgment in Miller v. Jennings (1954) 92 CLR 190 at 195-6, and by Barwick C.J. in Gamser v. The Nominal Defendant (1976-77) 136 CLR 145 at 148).
As the Judicial Committee of the Privy Council observed in Paul and Another v. Rendell (1981) 34 ALR 569 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 exercise in the art of prophesying not only what the future holds for the injured plaintiff, but also what the future would have held for him if he had not been injured.
Accepting his Honour's findings of fact about the plaintiff's residual disabilities and the range of remunerative employment available to him, we are of the opinion that the discount of the calculated figure of $380,000 by only one-third allowing for the usual contingencies at the rate of 15 per cent, was far too low a discount in all the circumstances and the resultant figure of $250,000 for future loss of earning capacity is outside the range of damages to be assessed under this head.
Accordingly, this court should substitute its own assessment of damages for future loss of earning capacity. In our view the appropriate approach is to adopt the pre-injury earning rate of $480 per week net, apply the three percent discount tables over a period of 20 years, ignore inflation and the income tax on any invested sum, and that exercise yields the aforementioned figure of $380,000.
The next step is to assess the rate of the plaintiff's residual earning capacity and in this respect we adopt as a guide the levels of salary for clerical staff in the Australian Public Service commencing at $15,543 per annum gross. This translates to an earning capacity of about $250 per week net. The net loss of earning capacity is therefore about $230 per week. Allowing something for contingencies, we think it appropriate to substitute for the award of $250,000 the sum of $165,000.
Accordingly, in our judgment the awards for past loss of earning capacity and future loss of earning capacity should be reduced by $17,786 and $85,000 respectively.
The only remaining question is whether the substitution of the sum of $18,000 for past loss of earning capacity calls for consequential adjustment to the amount awarded in respect of interest. His Honour found that the plaintiff had received to the end of June 1987 payments by way of workers' compensation totalling $49,178.95 and rounded that figure off, so that for the purposes of calculating interest the difference between his award of $66,596 for past loss of earning capacity and rounded off workers' compensation payments to the date of judgment was $14,250. He then calculated interest on the aggregate of $25,000 for a proportion of the general damages and $14,250 for past loss of earning capacity at the rate of 14 per cent per annum and reduced the result by half, yielding a total figure of $8471.45 for interest.
As we have reduced the amount awarded for past loss of earning capacity by $17,786, no amount should be taken into account for past loss of earning capacity for the purposes of calculating interest.
The application of an interest rate of 14 per cent per annum to the sum of $25,000 for a proportion of the general damages over a period of 3 years and halving the result yields a figure of $5,150. In the circumstances, we think it appropriate that this court reduce the award for interest to $5,150.
Accordingly the plaintiff's damages should be assessed as follows:

Loss of future earning capacity $165,000.00 Past loss of earning capacity

to 20 February 1986 30,810.00 Past loss of earning capacity from

20 February 1986 to date of judgment 18,000.00 Fox v. Wood component 19,438.70 Agreed out of pocket expenses 12,065.85 Agreed domestic care and assistance 5,000.00 General damages 45,000.00 Interest 5,150.00 ----------- less 10% 30,046.45 ----------- Total damages $270,418.10 -----------

We would propose that the appeal be allowed, the judgment of the Supreme Court set aside and in lieu thereof that there be judgment for the plaintiff in the sum of $270,418.10.
We would further propose that the cross-appeal be dismissed.
As to costs, we would propose that the plaintiff pay the defendant's costs of the appeal and the cross-appeal.

JUDGE2

I have had an opportunity to read the reasons for judgment prepared by my brothers Gallop and Neaves JJ.. With respect to the questions of liability and of contributory negligence, I agree entirely with their Honours' observations and with their Honours' view that the appeal and cross-appeal with respect thereto should be dismissed.

With respect to the assessment of damages, I gratefully adopt their Honours' statement of the facts and I agree with their Honours' view that, on those facts, the assessment made by the learned trial judge as to future earning capacity was in error. However, my view on this matter is somewhat closer to that of the trial judge and I would amend his assessment in only one respect.
Constable Pilarski suffered severe injuries. They precluded him from undertaking employment of a physical nature. As to clerical work, I adopt the finding of the trial judge that:-

". . . the plaintiff is, in my view, incapable of holding down a job in a clerical position unless the job is such that would enable him to get up from time to time, when he found that he could no longer tolerate the pain in the ankle and back."

Moreover, I adopt the trial judge's finding that "the plaintiff's clerical skills have always been quite limited", a reference to the evidence of an Inspector of Police who said, inter alia:-

". . . Mr Pilarski was an honest plodder. . . . His paperwork was not of an acceptable standard and would be returned frequently for correction. . . . He has a bad usage of the written English word and he has difficulty expressing himself on paper. His spelling is atrocious and his grammar is not much better."

If Constable Pilarski was not suited before his injury to undertake Police clerical duties, which are varied, he was equally ill-suited to undertake clerical tasks after his injury, when he was additionally unfit for any employment that involved either sitting or standing for a long period.

I accept the view taken by the trial judge that Constable Pilarski was not likely to be able to obtain suitable employment prior to the trial. Although his Honour appears, in this regard, to have misunderstood a concession by counsel, I think that that was, in any event, the substance of his Honour's view.
I also accept his Honour's view that, after trial and judgment, Constable Pilarski would most likely find employment in an occupation of his own. I accept his Honour's view that ". . . this plaintiff will be able to put the damages that he is about to receive to use in a way which will make his limited earning capacity productive." His Honour was not there taking into account the income or profits which Constable Pilarski might make from the damages which he received. That was not a relevant matter. However, it was relevant that Constable Pilarski had, despite his injuries, a capacity for work and that the damages awarded would enable him to exploit that capacity. Even prior to injury, Constable Pilarski had shown an interest in developing and maintaining properties. That was one type of work which he could continue to do despite his injuries, and the receipt of the damages would enhance his capacity to do so.
In my opinion, the trial judge was correct in concluding that Constable Pilarski was unlikely to be able after trial to obtain and hold full time employment and his Honour was correct in concentrating upon the particular aspects of Constable Pilarski's work abilities to which I have referred.
However, by making a discount of 30% for what his Honour described as contingencies, the trial judge, in my opinion, fell into error. His Honour said that the usual discount for contingencies was 15%. Indeed it was and it was also appropriate in this case, for employment in the Police Force was not isolated from risk. In my opinion, the remaining 18 1/3% of the discount was too low a figure to represent Constable Pilarski's residual earning capacity. His residual earning capacity was not so low as to be a mere contingency. It was a significant capacity in respect of which a substantial allowance ought to have been made.
Constable Pilarski himself gave this evidence as to what he would do if he were not reengaged in the Police Force:-

"Assuming that you do not get in, what are you going to do? --- Well, if I do not get in, then I will start looking for another job.

What, public service clerical work? --- As such as in public service, I do not know. I have given it a bit of thought. I am not a keen supporter of public service, right? I would rather go into private enterprise. What would you do in private enterprise - clerical work, would you? --- Well, all depends where I would get the job, who I am working for. It might be very light duties like a storeman or something like that, you know, where it only entails work to pick up a small parcel or even a shoe store or whatever, you know, so I have not got any big boxes to pick up or anything like that, and I can do the book work plus a little bit of storemanship work, whatever. Have you thought of getting into some more property investment with your verdict? --- Not as such with the verdict. It has always been my ambition, like I told you before, to own property and any farms or flats or anything that I could get, and specially a farm because my young fellows, they love trial bike riding which I obtained one bike for them and I borrowed another one of my mate's bikes, so in the end I did eventually purchase a farm, but not with the anticipation what I was going to get here or anything like that."

Though that evidence is not inconsistent with the conclusion of the trial judge that the Constable was unlikely to engage in full time employment and more likely to engage in matters of his own concern, neither that evidence nor the medical evidence gives a picture of a person whose residual earning capacity is only 18 1/3%. As the trial judge noted, Constable Pilarski had had experience in building and in maintenance, particularly in electrical work, already had a family company which owned three leased flats as well as the farm referred to in the above evidence and had a continuing capacity to exploit his talents.

I would allow the appeal to the extent of increasing the allowance to be made for residual earning capacity to 33 1/3%, the proportion adopted by his Honour for contingencies. Such a proportion appears to me to accord with his Honour's findings of fact and with the evidence. To the resultant sum of $250,000.00, I would apply a discount of 15% for contingencies. I would therefore reduce the damages awarded by $37,000.00.
Save in this respect, I agree with the assessment of damages made by the trial judge. I would dismiss the cross-appeal as to damages.
As the appellant would succeed to a limited extent on the question of damages but would fail on the issue of contributory negligence, I would order that the respondent, Constable Pilarski, pay one-half of the appellant's costs of the appeal.

[1988] FCA 772

03 JUNE 1988