Hall, Brian Matthews v Tarlinton, Dennis Albert

[1978] FCA 34

CATCHWORDS

l

D8m8ges - assessment - loss of earning capacity - deductions for

cost of earning income and for maintenance - allowance for favourable

and unfavourable contingencies - allowance for cost of full-time

sarirtant for quadriplegic - allowance for pain and suffering.

HALL 6 ANOR. v . TARLINTON

No. FC 23 of 1977

CORM: Blackburn, N i u o and St.John JJ.

27 April 1978

Canberra

IN THE FEDERAL COURT OF AUSTRALIA 1 1

AUSTRALIAN CAPITAL TERRITORY REGISTRY ) No. FC 2 3 of 1977

1

GENERAL DIVISION 1

BRIAN MATTHEW HALL and

ROBERT J. McKAY

against

DENNIS ALBERT TARLINTON

ORDER

JUDGES MAKING ORDER:	Blackburn, Nimmo and St.John JJ
DATE OF ORDER:	2 7 April 1978.
WHERE WADE:	Canberra

THE COURT ORDERS THAT:

1. The Appeal be dismissed with costs.

I N TBB mDBRAL CQURT OF AUSTRALIA	1
1

N-lAM CAPITAL TBllllJTQRY REGISTRY ) No. FC 2 3 of 1977

1

GENBUL DIVXSPOH 1

BRIAN MATTHEW HALL	and
ROBERT J. McKAY

against

DENNIS ALBERT TARLINTON

C O W : Blackburn, N i r o and St.John JJ.

27 kpril 1978

J U D G M E N T

This appeal i r from a judgment of Connor J. in the Supreme

Court of the Australian Capital Territory given on 2 December 1977.

The action was for darrqes €or negligence causing personal injuries,

and the learnrd trial judge gave judgment for the plaintiff in the sum

af $409,716.20. Thr appellants. defendants in the Court below, appealed

on both liability and damgrs, but a t the hearing of the appeal, counsel

in opraing intimated that he would make submissions only on the question

of d t u g e r .

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The respond~nt~s injuries were catastrophic. Before the

accident h Was 8 qualified fitter and machlner who was highly regarded

by his employer as an excellent tradesman and a conscientious and hard

wsrtin8 employee. He is nou 26 years old, and has a life expectancy of

from 50 t o 35 years. H0 is a quadriplegic, with very little movement

in his waa m d hands, h. is sexually impotent, he has no control over

his bowels .ad blr i lk? , and he is subject to violent spasms which may

. b strmng enough to throw him out of a chair, and necessitate the

prosore* nmor h i 8 of s m othor person at all times, night and day, so

trot he con be u v e a and assisted should a spasm occur.

fbc learnod trial judge assessed the damages with great care

8nd rrprossod his roasms precisely. It 1s convenient to set out here

the summary, *de by the trial judge at the end of his judgment, of

the manner in which the final assessment of damages was reached.

'Special damages $25,716.29

Loss of urges from accident o

trial $24 ,000 reduced to 21,000.00

Modifications to parents' home 3,000.00

Future modical treatment	10,000.00
Cost of praplog ic equipment and

extra cost of annual holidays 14,000.00

Spocial car soats	3,000.00
Futuro ocorolic 108s $100,000

reduced for lost p a r s etc. to 95,000.00

Cost of futrur institutional care

$lW,@W Mwrd for overlap

in iwil 8ad Iadgiag to 81.000.00

Cess o f wsbtmrt for plaintiff

$I7,006 rOdUCrd fOT

contin~oncior t o 80,000.00

LOSS of 0xp.ctation of life 2,000.00

Pain, suffering, loss of amenities 75,000.00

Total $409,716.29"

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Counsel for tho rppollants made no general challenge to the

wble Vsrt of -8 en m y principle affecting the whole award,

but nth soparat. sPI.b+~lol~	on several of the particular matters.
Wit3 there we deal soriati~.

?h0 first setter V I S the mount of $21,000 which was allowed

by tb W5.1 judm t m rrprr+.st tbo respondent's loss of earning

crpwlty (measured in toms of loss of wages) between the time of the

uc-t rlfd tbo tiw e€ trial. At the trial it was agreed that a

figure o f $24,00@ reproranted the gross amount (apart from tax) which

the r o w a t esvld Bavo earned if he had been employed for the whole

of that poriod at tho rate of wages which he was earning at the time

of thr accident. Fro# this mount, the learned judge made a deduction

I

of S3,bfJr for the s u of several matters in respect of which sub-

missions woro B&& t o him, nnasly the possibilities that the opportun-

i t i o s of * a r b 4 m r - t i w might . b reduced, that he might be retrenched

fram rrplomat, d t h t h0 might hnve taken an extended holiday for ,

8- pf Lis rOrkim$ time; also for the expenses of earning his income,

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d fbr that p%t of tho amount paid to hospitals, repaid to him as i

rp.df8l	d w p s , whlcb repremted the cost of his own maintenance.	i
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k f W o this	C&	mo*l fer the appellants contended that, on the	I
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eridese the d.&#ctios f $3,000 was too small. We have considered this I

contM%-. 8nd uo wrm u i t h the learned trial judge that i is im-

posrtbIo CO ?M preciu about this matter. We cannot be satisfied that

tba trfrl j-8 *IS. in his conclusions; on the evidence, $21,000

A U8s fiton Wkkb he could reasonably have determined. On this point, ,

thslOfaT0 wm b&vo to reject the submissions of counsel for the

tppol1 ant I . i

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Tho maxt matter in respect of which counsel criticized the

judpoat was in tho calculation of the plaintiff's future economic loss.

It is accopted that as a result of the accident, the respondent is un-

mploy.ble for tho rest a f his life, and also that his life expectancy

is redmced t o 3U to SS yoars from the date of the accident. The law as

sot out .ad appliwd by the High Court in Skelton v. Collins (1966) 115

C.L.R. 94 , and 8he-a v. Ev8as (1977) 13 A.L.R. 57, is that in making

a calculation of future economic loss, a deduction must be made for the

rxpenaes coaaoctod with the earning of income; the plaintiff will not

have to incur thoro oxpensss since he cannot earn any income. That is

813 rllmwmce which, in the first place, has to be made for the period

during vhlich, had it not been for the accident,	he would have expected
to be earning wages or a salary.

It is also the law that in every case it has to be asked

whether a deduction must be r8de from the amount assessed for loss of

earning capacity, for tbo cost to the plaintiff of maintaining himself

8nd h i s dopmduts , (if m y ) . The test is whether, if this deduction

wore net made, **an olrmnt of double compensation would intrude", as

Gibbs ucl Stophon JJ. put it in Shrn8n v. Evans at p.69. The deduction

is calculettrd, fn tbm fimt place, for the period of the plaintiff's

post-wcidont (i.0. actual) life expectancy, and secondly for the

p W i d f i f any) duri ly a l i c h he would have been working had it not been

for tho mccident (the so-called "lost years").

In the case before us the learned judge's method of dealing

vith tbaso deductions waa s follows. He made a deduction for the cost to

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tb. pf8ieiff of .*intaiming himself, during his actual life expectancy,

in s aollmlly different, though equally effective, way, i.e. by

8ppropriMeIy m f y the smmt be allowed for the hospital charges

tb@ rjtirfiff wool& flrcwr. Th8t method of dealing with the matter had

the -1 0f the j-8 in SIt8-a v . Evans (see per Gibbs and

Stephen JJ. at p.6). end pet Mrphy J. at p . 8 6 ) . Connor J. dealt with

the pws%fam of l a n of -.ring capacity in this way:

"Using 69 8ad 78 interest tables and taking

ressom&%~ c-rrble wager it was not

din-& tbet the lump SUB figure for his

less i a in tkr order of $100,000. This I

r h i a is 8 ru8ron8bls st8rting point from

tb rri. Wy appropriate deductions.

rri&acr is that the plaintiff's expect-

8tim o f l i fe 8s from the date of hearing,

when he w s 2s. is 30 t o 35 years. I have

c8hX~l8t.d his future economic loss at being

40 years frm tbe date of hearing. On this footing there are notional1 5 to 10 years

compamation duriaa which t e plaintiff would l

net harm t o port himself. Allowance must

be d o for th -f S and for the ordinary travell-

*a# m d atL.7 expenses 8ssociated with work.

I pr H therefore to consider a figure of

$SS,% &S 8pp~opri8te for this head of damages."

Later in the jud#~ant, in the itemized list	of heads of damages to which
we h . n .ltao@ rmferred, he said

"Putol~ wororic loss $100,000 reduced for lost

rears etc. to $9s,OOO.''

Courul for t&e appellant contended that this showed that the

lbamed trial fudge misapprehended the law, and made both deductions

oaly i a rrrpsct of "the lost years", whereas he should have made the

first one (for expenses of earning his income) for the whole of his

. . I . .

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p ~ o - a e c i 4 M t o&raia@-life eqrctancy. If he had made both deductions corroetly, it was cmonded, hr must have reduced the $100.000 by an

amtmt g n a t e r t b a $5,OUO. Counsel for the appellants referred us to

the evidence at the trial which showed that the respondent would have

erpeetmd, but far the wcidmt, to drive himself in his own motor ca

about l 0 riles (14 kilometres) a day to and from work, and that a

c e 3 8 t . 8.t of utcbmic's tools, which he needed for his work, cost

about $ W O , and that those tools would have had to be replaced from

tire t o tin. Copuel d i d not refer us to some evidence which was, in

fact , before thtt learned trial judge, as to the overall cost of maintain-

ing .d a wtor vrhiclr, expressed in cents per kilometre. There

&a -tXy m .*L.* e*I)*IKe of the respondent's possible costs of

-fag *or. Courrsel d i d not, in submissions to this Court, make any

8rith..tiC.1 c&l&slatlarr based on this evidence, in support of his sub-

mission that $3,0eb V.# too sull a deduction. Some such arithmetical

C b l C I d 8 t h B is pwriblo. A celeulotion of motor vehicle costs, at 10.3

Cents 8 kilawtre C g S m in evidence) for 16 kilometres a day for 235

days a ymar, p r o b ~ r s an annual figure of about $385; let there be added

t o this $Sa for roplacermt of tools, making an annual cost of $435. The prurent v 8 l w of m annuity of $435 for 30 years at 6 % is about

$6,000. TO hL;ls figure of $6,000 (it might be said in development of

couns*l's sarbr iss im) S- figure (whatever it may be) must be added to

. .. nweroat tk cost of ob. nspondcnt's maintenance during the "lost

years). CUI it bo said, therefore, that two facts in combination - (a)

.1	the faut that the learned judge deducted only $5,000 from his starting
fagum e) $106,000, 8nd (b] the fact that he expressed himself as he

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a i d in his reasons for judgment, -should lead us to conclude that he

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U& 4n orror of law, in that he failed to make allowance for the costs

whicb t h p18fHiff w a d incur in earning the income which he might

h8ve 08r8.d d u r i q the mming-life expectancy of which the accident

doprird him? i

Ye 40 rYt fiM it possible to come to this conclusion. His

Honour's reportad roferoncss t o Shrnan v. Evans make it extremely

ditficult t o b e X i m o that he ovorlooked a principle which is so clearly

nprurd there h OiWs 8Ed Stephen JJ. (at pp.68-69 and p.76), and

ono , moreaver, which h. explicitly recognized in his calculation f

d.ug.8 fer tha r+spondont*r loss of earning capacity between the time

o f the 8ccident 8nd the time of trial. We cannot say that the learned

judge ludo the error o f principle which was suggested, and we are thus

left with the quostion whether, though he applied the correct principles,

h. arrived at 8 figure ( $ 9 5 , 0 0 0 ) which was clearly excessive as a figure

fht21. plaintiff's loss of future earning capacity. The question is

oquivol.nt t o asking whether a reasonable jury, properly directed on

the evI&mce, could h8vr reached that result. In our opinion the answer

is PS, and for th8t reason WO reject the appellants' submissions on

t h i l p i R t .

The M X ~ ground o f attack on the judgment was on the allowance

for the SO crllod "contingencies", or vicissitudes, in relation to

-0s for future less of earning capacity. It was argued for the

8ppelfrnts th8t, in principle, the correct approach is to assume that

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tbore would have beon same Contingencies adverse to the plaintiff which

would brre r-od the r8lw of his earning capacity, leaving the onus

on the plaintiff t o satisfy the Court that there were countervailing

prospects a i c h rt*t sfther have neutralized the effect of the adverse

continpmcios, or, possibly, gone further, and justified a larger

filuzo fer loss of tami ly capacity than that based upon his wage or

Salary 8% tit8 tin of thm accident. The ground on which counsel attack

od tho l O r ? n e d judgo's 8pproach to the problem was that he had no

evihnce e~ &irk h0 c e d d hare COB. to the conclusion that certain

f8WuT8bh costimmies offset what he called "the usual unfavourable

conti~mscies". -se	hvourable contingencies were described by His
Honoor as follows:

"I think that if he had remained in employment

he m y well have become a leading hand or a

m in h i s late thirties or early fortles.

I thfial also it was quite a reasonable possibility that, w i t h his keen interest in motor vehicles, he and his brothor may well have prospered if they had

rsnturod into business for themselves ."

We are clearly o f opinion that there was evldence on which

His hmmr c a d properly have assessed the vicissitudes of the

mspeudent's possible future life in the manner in which he did. Counsel

for tho Wpollmt furthmr colplained that there was no evidence relating

t o the m t of t h fiaawial rewards which these favourable con-

tilyracirs d g b t h v u brought to the respondent. This argument seemed

tQ HI- k+L that tlbl 0.U. is on a plaintiff to establish, on the

balmco o f probrbilitirs, that ,there are any favourable contingencies

to offset the a s r w d umfarour8ble contingencies, and secondly, that a

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plaintiff also has the onus o f establishing the monetary value of such

?

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c ~ ~ i o in tho same u m m r in which he has the onus s , of establish-

ing tho fLnsnci.1 rew8rds which he would have reaped had he been able

t o -tor plcm an occupation from which the accident has precluded him.

In our opinian, this contention of counsel was incorrect in

both reapocts. In the first place, it is not the law, in our opinion,

that uslfavorrrablc contingencies are always to be assumed, and that the p l a i n i f f Ip.8 tke mns o f establishing that there are countervailing favourable ~olrti~yancios. In our opinion, in each particular case, the

qwstim i r em for tho trial judge or jury; on all the evidence, does

3 t appear tbmt the calculation of the plaintiff's loss of earning

capity, b e d Q h i s r y e r at the time of the accident, should be

knrroarod for frrwrable contingencies, decreased for unfavourable

COlrtiIt#crici.8, or lmft unchanged for the combination of both? Secondly,

the matter is net one for calculation, but for the exercise of a broad

gonrral ilrcrotfom. n o matter is quite otherwise, of course, if the

plrintiff rlle&4s th8t tha accident has deprived him of the capacity

to earn at a higher rate (or perhaps, of the capacity to earn at all).

In I K ~ a care it is well sottled that the plaintiff must adduce evidence

of the financial rewards which he might have enjoyed; but that is not

the point with dieh we are now concerned. We see no reason to criticize

tha jud-t of the learned trial judge in this respect.

Tke next matter of which the appellant complained was the allowance of $60,600 for the rmployment of an assistant to the plaintiff.

7hero W a a much evidence rbout the respondent's physical and mental needs,

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bt- &out by tb m i d m t , 8nd .bout the best ways of satisfying

them. A t t h t i l of rlu trial the respondent was living at home,

DII~ Lis p h y s i a naods, which are extremely exacting, were attended

t o by his fother, mother, and brother. If this regime could last in-

acliisitmly h t *oil$ k i k a l for the respondent, subject only to the

necessity for him to go to hospital for specific observation and treat-

't

d *.at lbw% OPE, a p a r . But for various reasons the time will come

quite soon dmm n6u of those persons will be available to assist him.

"I . .

The coatmmtion .ul. for the respondent was that when that time comes

?tat w i € l mire D bwaebold of his own with a staff of full-time

8 a r i r l u t a . -re was mmplr evidence to show that such a life would

b. b i f i ly &o&%r&le for tho tospondent; far better than life in hospital

or ririler h8titutiw. It rppeared that the wages for such a full-time ,

rteff uwid raquire m . S t o w w e of damages not far short of half a l

dllien d s l h t s . On tho other hand, it was argued at the trial for the

appell.nta tbt s W i d h l i ab le only for the respondent's costs

of bvhg e l i # W h l g p a t i n t in 8n appropriate institution. This figure

U88 Hwth4Rg of *h+ order of $150,000. The learned trial judge

B T O S ~ W ~ ~ ~ doddrd titr the rppropriate regime for the plaintiff would

. b t)Ut b . rhwld a perm~~ent resident in an institution but have I

froeh t o IQH m in h i s own motor vehicle in the way that a normal i

parsol b r . H. cannot use public transport; he would therefore need

rraiatrac. of attendant, not only t o drive the vehicle (which

I

tbr plefatiff ~$13 m a r be able to do) but to assist him ingetting in l

and aut ef i t rpd i n saving 8bout in a wheel chair. The institution

rovfd rpeply a13 8- mods which for a noma1 person are supplied as

8 u t t e r of hou$~mSd m ~ i n e , and in addition those special physical

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nrods d i c h the respondent's invalid state imposes. The only avail- t

ab10 institution i n the Territory is a hospital called "Allambee"

which for tho rrsposdont has the very great disadvantage that it is

esso~ti8lly a geriatric institution. The medical evidence was that

f o r the respondent t o be permanently an inmate of such an institution,

without h i s own indapendont means of moving away from it at such times

as he wirhod to do, would have a harmful effect on him, and that a

degree of indrpen&nso of movrment and of intercourse with people other

than his foi.Ie~-imatrr YIS nrcrssary for the maintenance of his physical

and ratal hoolth. (In this respect the evidence was different from the

evidoncr &R 6)ra.rm v. Emus.) The evidence also suggested that some

form of trainin8 in occupations1 skills might be possible for him, and

would ho kaefiri11; rucL training would require his movement in and I

out of hospital. The prospects of such training going very far were

clearly pour, &ad the loaned judge clearly rejected the possibility of

i	thr respondent's ewer being able to exploit any such skill for reward.
But that did not throw doubt on the view that the mere ability o move
about in the world, outside the walls of an institution, would be
kuficial to the respondent and that inability to d so would be
harmful t o him.

Thoro was, thorsfore, in our opinion, ample evidence on which

the learned trial judge could C O B O . ~ ~ the conclusion, as he did, that

the ro+pon&nt's durgos i n this respect should be based on his being

a perwmrt rrsidurt of Al18Bb.0, with freedom to move out of it for

2' social .ad mcreatioarl purposes, as he saw fit, and that to have this

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freadom he would require a paid assistant. There was evidence about

the cost of the wages of such an assistant, and there was evidence on

which the learned judge could have found, as he did, that such

calculation of rases should be based on the employment of such an

assistant for not less than 40 hours each week. 'In our opinion there

is no ground for upsetting the learned judge's findings and decisions

in this respact. The figure of $80.000 which he allowed is in our

opinion justified, m d 5s not invalidated by the fact that the regime

which he a d m h a t e d was not put, exactly in that form, by counsel for

the plaintiff 8t the trial.

Finally, an att8ck u8s node on the amount allowed by the

lermmd trial jud&e fer non-economic loss, i.e. pain and suffering and

loss of the olenities of life. In respect of this, the learned judge

allowed $75,000. It was contended by counsel for the appellant that

this sum was unifertly too great. Reference was made to the already

cited case of Shaman v. Evans, and to the joint judgment of Gibbs and

Stephen JJ. in that case. Their Honours in that case were able to show,

by examining several separate amounts which had been less precisely

fixed by the trial judge than those which have been fixed n the case

before us, that of the total amount awarded by the trial judge, the sum

of $OCl.OOO must have represented pain and suffering and the loss of

amenities. #hat their Honours said was

"his and Suffering 8nd loss of the amenities

of I i fr is a head of damages which is

pec#lkrly difficult t o assess, but when

f u l l compoasation h85 been determined in

?'aspect o f a l l other heads of damages, it

to us that an additional sum of

$80,0M excaads uh8t could properly	be
awarded under this last head.."

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#le respectfully adept the 8pproach to this matter taken by their

Honours, but on the facts before us we come to a different conclusion.

Wm accept, with rmspect, that the right approach is to ask, after all

the other calculations aad assessments have been made, what should be

the nount for pain, suffering, and loss of amenjties of life; that

is to say, to assess thr appropriate compensation, under this head,

for a plaintiff for whoa all other proper provision has been made. We

do not, of course, togard what their Honours said about the amount of

$80,000 as laying down any law; every case must depend on its own facts,

especially in such a matter as this.

Before we embark on an analysis of the damages, as reduced by

their Honours, armrded t o the plaintiff in Sharman v. Evans, with a

viev t o comparison with the facts of this case, we make the perhaps

unnec~.asa17 observation that such an exercise can be no more than a

tentative p i d e . In SharmM v. Evons their Honours reduced the trial

judgo'r asS8888ertt of y m r a l damages,$275,000, to $250,000. Their

arsess~ant of tko danger apart from damages for pain and suffering,

was in *tail as fal lour

Hospital and other $128,000 car

Transportation 20,000

Loss of expectation of life 2,000

Loss of earning capacity (maximum) 45,000

$195,000

It is apparent, by the application of a process similar to that which

their Honours applied to the trial judge's assessment, that $55,000

represents their assessment	of damages for pain and suffering and
loss of maitier.

' . . * . ...

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The respondent in Sharman v. Evans had somewhat more serious

disabilities tbur the respondent in this appeal, as appears from the

r u w r i e s of the trial judge (quoted by Gibbs and Stephen JJ. at p.63

of the roport), .ad of Murphy J. at pp.81-83. In particular, that

respondent had pr8ctically lost the power of speech, which does not

apply t o this respondent. The estimated life expectancies of the two

peT8OnS were =Eh the #.W.

Sharman v. Evans was decided by the trial judge early in

1974, and betwoen that time and December 1977, the date of the judgment

under appe11, it is notorious that there has been a fall in the value

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of maney.

Rridsnce was given in the case before us that in the first

i

quart.? of 1974 the average weekly earnings "per employed male unit" in

the Australian Cepit81 Territory. seasonally adjusted, were	$150; for	i
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the first quarter of 1977 (later figures were not in evidence) they

were $240. Such figures can do no more than provide a very rough

indication (again by virtue of permissible judicial notice of what is	I
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notorious) of the extant of inflation. Let it be assumed that the amount1

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of $ZS,aOtI 8u&rdad in the case before us has to be reduced in the	i
proportion of 240:lSO to be compared with an award made in early 1974.

The result is $46,875. Allowing for the more serious disabilities	of	the	i
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plaintiff in Shanas v. Evans, this does not seem an unreasonable figure ,

by coaparisoa with the notional figure of $55,000 which can be derived

from the reasoning of Gibbs and Stephen JJ. in that case.

In the last resort, of course, (as Gibbs and Stephen JJ.

iqlied in their joint judgment) the assessment o f damages under this

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head must be felt to be reasonable,just,and proper in all the

circumatmcer of the particular case. It is our feeling that the

figure of $7S.000 in tba case before us cannot be said to be unreason-

abla, unjust, or improper. The comparison we have made with Sharman v.

Evons doer not disturb that feeling.