Hill v Temple

[1988] TASSC 48

Serial No 41/1988

List “A”

COURT:SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION:              Hill v Temple [1988] TASSC 48; A41/1988

PARTIES:  HILL
  v
  TEMPLE

FILE NO/S:  129/1987
DELIVERED ON:  9 September 1988
DELIVERED AT:  Hobart
JUDGMENT OF:  Neasey, Nettlefold and Wright JJ

Judgment Number:  A41/1988
Number of paragraphs:  14

Serial No 41/1988

List "A"

File No: FCA 129/1987

HILL v TEMPLE

REASONS FOR JUDGMENT  FULL COURT:

NEASEY J

NETTLEFOLD J

WRIGHT J

9 September 1988

Order of the Court:

1.      The appeal is dismissed.  The cross appeal is allowed.

2       Judgment for the appellant for the sum of $154,971.38 is set aside.

3.      In lieu thereof, judgment is entered for the appellant for the sum of $188,215.38.

Serial No. 41/1988

List "A"

File No: FCA 129/1987

HILL v TEMPLE

REASONS FOR JUDGMENT  FULL COURT:

NEASEY J

NETTLEFOLD J

WRIGHT J

9 September 1988

1. In this matter there is an appeal and a cross–appeal in relation to an award of damages totalling $154,971.38. The respondent's lower right limb was crushed between the bumper bars of a moving and a stationary motor vehicle, on the southern outlet road south of Hobart, in June 1983. In his reasons for judgment, the learned Chief Justice who was trial judge set out in some detail the nature of the injuries, and the attendant suffering, treatment and sequelae incurred by the respondent. The first ground of appeal is that the award of damages for pain, suffering and loss of amenities of life was manifestly excessive and against the weight of evidence. Set out below is some relevant material from his Honour's reasons. The learned Chief Justice said:

" ... the plaintiff suffered a compound comminuted fracture of the right tibia and fibular. He suffered severe pain before being admitted to hospital. He underwent surgery and was placed in plaster. Subsequently the lower part of the plaster was adjusted in relation to the upper part by a painful process called 'wedging'. Whilst in hospital the plaintiff's wound became infected and had to be treated by the opening of a window in the plaster. He was an in–patient for 22 days and then discharged on 22 July on elbow crutches. Whilst in hospital the pain was to some extent controlled by drugs and after about 14 days subsided, but did not disappear. The plaintiff was in a full length plaster for eighteen weeks and in a short plaster cast which commenced below the knee for another 3 weeks. He continued using crutches for another 5 to 6 weeks. He underwent physiotherapy at Huonville and then from March to August 1986 underwent an intensive course of physiotherapy and occupational therapy at the Douglas Parker Clinic. On the recommendation of Mr. W. B. Law, the plaintiff has since June 1984 worn one of two types of caliper which provide him with physical support and add to his confidence. It was not until about the end of 1984, or early in 1985 (18–20 months after the accident) that the plaintiff's capacity to use his leg improved to its present level."

1. His Honour then set out a number of reasons for a view which he formed that the respondent's evidence was not reliable, except where it was corroborated. Having done that, his Honour continued:

"As a result of the original injury or the subsequent immobilization of the limb, in addition to the fractures the plaintiff suffered scarring, loss of muscle bulk and, on the balance of probabilities, damage to the sub–cutaneous nerve endings, adhesions, poor venous return and a reduction in the elasticity of the ankle capsule or sleeve. I find that the plaintiff will always walk with a slight limp, that as a result of the damage to the veins his leg tends to swell after continuous activity or weight bearing for any length of time, that he has some loss of feeling or altered sensation in parts of his right foot in the shin and calf below the fracture site and that he has a reduced capacity to move his right ankle and foot, but that this varies with the amount of swelling. The restriction of ankle movement makes it difficult for the plaintiff to kneel, squat, climb, walk on hills or uneven ground or use ladders and he is prone to losing his balance. The plaintiff is left with a permanent disability with the right leg of the order of 20%. I find that the plaintiff has a perceptible reduction of muscular strength in his right leg, he is unstable on uneven ground or on a slope or on steps and he has a feeling of tightness in the area of the scarring and over a wider area when it is swollen. I find that the plaintiff suffers pain after prolonged activity involving his leg or ankle, especially when that activity involves movement of the foot which extends beyond the limits of the elasticity of the ankle capsule. I find that he sometimes suffers pain in cold weather. I find that on occasions the level of pain is such that the plaintiff needs to take a fairly strong analgesic. I am not satisfied that the plaintiff suffers constant pain. I find that before the accident the plaintiff was an outgoing cheerful man who did not worry. I find that he is still outgoing and cheerful at times but that as a result of his disabilities he experiences frustration which has made him more irritable and bad tempered than he was before the accident and on occasion has led him to tears. I find that he is not depressed but is, as a psychiatrist who examined him expressed it, 'mourning' the reduction of his physical ability. I find that the plaintiff's relationship with his wife and others has been impaired as a result of his change in personality and outlook. I find that the three main causes of his changed outlook and personality are:

(a)       the reduction in his financial independence;

(b)       feelings of uselessness because he cannot work; and

(c)       the limitations upon his physical capacity.

I find that an award of damages and a more determined effort on his part to find work within his capacity will help to overcome causes (a) and (b). I am satisfied that on the probabilities the plaintiff's emotional and mental state will improve, but it is not probable that he will ever completely return to his pre–accident state ... I find that the plaintiff enjoyed hunting and fishing before the accident. I find that the plaintiff's disabilities have very greatly reduced his capacity to engage in these sports. I find that it is most probable that as a result of the venous congestion caused by the injury there is a risk of ulceration in the leg. I find that it is highly probable that the plaintiff will have to undergo surgery entailing the graft of skin within 8 years ...  In December 1986 Mr Law manipulated the plaintiff's ankle under a general anaesthetic. This operation involved manipulating the joint and stretching the adhesions and the capsule and injecting lubricating fluid into the joint. The operation resulted in a very substantial reduction of pain and an increase in the range of movement in the joint. After about 3 weeks the plaintiff began to revert to the condition he was in before the operation. I find that it would be desirable and reasonable for the plaintiff to have such an operation once or twice a year. The plaintiff should be compensated for the cost of these operations. However, I also take into account when assessing general damages that as a result of undergoing these operations the plaintiff's condition will be greatly improved for a substantial proportion of each year. … I take into account the cosmetic disability represented by the unsightliness of the plaintiff's leg, but in doing so I have regard to the fact that he did not give evidence that he was concerned or self conscious about it although he is self conscious about his limp …  I find that the plaintiff has developed callouses on both feet caused by his gait, which will require treatment on a continuing basis, but I reject the plaintiff's evidence that he will require treatment each month. I also find that the plaintiff should have an orthotic device and a surgical shoe to accommodate the device which will have to be replaced each two years. The plaintiff is only claiming the cost of one orthotic device. I accept the plaintiff's claim for future podiatrist expenses as formulated by his counsel, save that I do not accept that he will need to have a consultation each month".

1. On the basis of this state of affairs, the learned Chief Justice assessed an amount for pain suffering and reduction in enjoyment of life of $25,000.00. The appellant contends that this part of the award was manifestly excessive. The argument adduced by learned counsel for the appellant in support of this proposition did not rely upon any specific allegation of mistake of fact or other identifiable error in his Honour's description of the nature of the injuries and disabilities. Rather, the line pursued by counsel involved a detailed traversing of the evidence which was given relating to these aspects, and particularly the expert medical evidence, culminating in a submission that the learned trial judge should have assessed the respondent's condition as "a minor disability", calling for compensation much less than the $25,000.00 awarded. In essence, the appellant's complaint amounted to a submission that the trial judge made an error of basic judgment in assessing the gravity of the injuries and sequelae.

1. We do not accept that proposition. In our view, his Honour made no error in assessing the respondent's condition which amounted to a very grave and painful injury, leaving him with substantial disabilities. The respondent suffered marked change in personality, impairment of family relationships, ongoing pain, disability and inconvenience, and substantial destruction of the generally happy, energetic and productive life–style which before the accident he had enjoyed. In our view, a sum of $25,000.00 awarded in respect of this head of damages was by no means over–generous, but on the contrary appropriate and conforming with the range of awards currently being made in this Court.

1. The next ground of appeal claimed that the assessment of $8,000.00 for lost income from contracting work from the date of the accident to the date of judgment was manifestly excessive. The accident occurred on 30 June 1983, and judgment was given on 15 October 1987. A little over four years had elapsed. The amount awarded was in substance $2,000.00 per year. The principal evidence concerning contracting work came from the respondent himself, with some supporting evidence from his wife and daughter. He had a 1972 model truck, and apparently a tractor, and worked with this equipment for neighbours, people in the district, and the like, in spare time, when not engaged on his regular job with the Hobart City Council. He would take on any kind of country contracting work which his own labour together with this equipment could be turned to. However, he did not keep any records, nor submit any taxation returns concerning it. However, the trial judge accepted that before the accident the respondent was a hard working and energetic person devoting much of his weekends to work rather than leisure. His Honour's award of $8,000.00 is a broad assessment, doing the best he could with the evidence. It is difficult to say that his estimate was clearly wrong, but making the same kind of overall judgment, We are persuaded that he was over–generous in awarding $8,000.00 (from which he deducted other actual earnings made by the respondent). We would reduce that component to $5,000.00.

1. The appellant next complained about the award for loss of future earning capacity. This was the main issue raised by the cross–appeal, and we shall deal with it after examining the remaining minor issues. First, the appellant claimed that the trial judge over–assessed future medical expenses, but we am not persuaded that he did. Next, the respondent in the cross–appeal claimed that two orthotic devices should have been allowed for instead of one. The relevant evidence was given by podiatrist Mr. Clennett. The substance of it was that the respondent would require two orthotic devices, one to fit within a special surgical shoe for the purpose of adjusting the respondent's foot to the correct angle for movement, and then the surgical shoe. These two devices would need to be replaced every one and a half to two years at a cost of about $250.00 each. Mr. Clennett also said that he would need to see the respondent about once a year in order to treat his feet. The present cost of such treatments is approximately $20.00. The trial judge awarded $4,631.00 for future podiatric expenses. The respondent was 47 at the time of the trial, and if one allowed a period of, say, 26 years during which these devices and this treatment would be required, the following sum would be produced:

Replacement of orthotic devices,
13 x $500  $6,500.00

Plus, 30 consultations at $20.00              600.00

Total:  $7,100.00

1. It was submitted to us that these figures show that the assessment allows for one orthotic device instead of two. However we do not believe that this necessarily follows. A sum awarded in respect of future loss of this kind represents a prepayment for expenses which will only accrue from time to time over a period of 30 years. Therefore, in the same way that present payment for loss of future earning capacity is discounted by 3% so should an award of this kind be discounted. Also, for much the same reason, an allowance should be made for contingencies such as the plaintiff's premature death. A discount of this latter kind should be substantially less than the sort of discount normally applied in respect of lost earning capacity because the contingencies are narrower in scope but they cannot be ignored. When these factors are taken into account one tends to get close to the figure produced by the learned trial judge and, accordingly, we would not interfere with this aspect of his award.

1. That leaves the amount assessed for reduced earning capacity. His Honour adjudged that the earning capacity had been reduced by approximately 40%. He allowed a sum of $72,488.00, made up as follows:

Present value of $325.00 per week
for 17 years, using 3% compound
interest tables   $226,525.00

40% of $226,525.00  90,610.00

Less 20% to allow for contingencies  18,122.00

$72,488.00

1. The main dispute was about this reduction of 40%. His Honour pointed out that the respondent has no formal qualifications and left school at the age of fourteen. Nevertheless, he had a broad working experience in a number of fields. He had driven taxis, bull–dozers, plant and trucks of all kinds and he had worked as a factory hand. He had managed a sawmill employing 30 men, had trained as a male nurse for three and a half years, been a driving instructor in the Army, had worked as a zinc worker at the Electrolytic Zinc Company and had performed farm work of all kinds. At the time of the accident he was employed by the Hobart City Council as a labourer and handyman. He had a broad range of duties, including manual excavation in hilly and rough terrain, fencing, clearing, handyman jobs of various kinds. His work required him to kneel, squat, use a jack hammer, climb ladders.

1. The learned trial judge accepted medical evidence that the respondent had lost 75 to 100 per cent of his capacity to work as a heavy labourer. However, the evidence of a Hobart City Council supervisor showed that although the respondent was keen to return to work with the Council, he proved completely unfit to carry out his former duties. His Honour was satisfied that the respondent was permanently unfit to resume that former employment. He found that the respondent would be capable of driving heavy trucks and machinery occasionally for short periods, but not on any sustained basis. He was also capable of driving light vans, tractors and the like for up to an hour or so at a time, and could drive a medium truck such as a water carting truck for periods up to 30 minutes.

1. The respondent had worked as a taxi driver for about a month in 1986, and then intermittently from December 1986 to March 1987. His Honour found that he was capable of driving a taxi during a full 11 hour shift, provided he did not have to drive continuously for more than an hour or so.

1. The learned Chief Justice then summarised the position as follows:

"I am left in the position of being satisfied that the plaintiff was capable of earning an income from contracting and trucking work before the accident, that he had done some contracting work and earned some income from trucking work since the accident and that in the future he will continue to be able to earn some money from contracting or trucking work, or both, but that he would not be able to participate in some of the physical work involved to the same extent as before the accident. I am satisfied that his earning capacity in relation to his contracting and trucking business has been reduced, but not entirely lost.

… In considering the extent to which the (respondent) is employable I take into account the disabilities and limitations upon his working capacity to which I have referred above and that in view of his age, his lack of formal qualifications and, to some extent, his personality, the plaintiff would find it difficult to compete with others for a job. However, I also take into account that the plaintiff is physically strong and has had extensive experience working in a wide range of occupations and that it is clear that there are many jobs which he would be competent and physically able to undertake; that although the plaintiff has no formal qualifications he is not confined to doing purely physical work but has shown himself capable of negotiating contracts, organising small projects and managing and overseeing other workers; that the burden of sustaining his claim for damages for lost earning capacity rests upon the plaintiff; that save for his employment as a taxi driver and his attempt to resume employment with the Hobart City Council, the plaintiff has not shown that he has made any attempts to find employment since August 1975; that the plaintiff's capacity to drive motor vehicles and medium trucks for the periods of time I have indicated would enable him to make a substantial contribution to the operation of any contracting business he wished to undertake."

1. With some hesitation we have come to the conclusion that the degree to which the respondent is now disadvantaged in the labour market has been seriously under–estimated by his Honour. The respondent's ability to work in fields for which his abilities fit him has been quite transformed, to such a degree that in our view his reduction in earning capacity should be assessed at 60% rather than 40%. We also think, with respect, that the conclusion by his Honour, that there are many kinds of work in which the respondent could engage, is not justified. In addition, we take the view that his Honour was not entitled to conclude that the respondent could, if he chose to, work as an owner–driver of a taxi, and achieve better returns in that capacity than as an employed driver. Evidence would be needed to support these propositions.

1. For the above reasons, we would substitute a reduction of 60% for the 40% figure assessed. The result is that in our opinion the existing award should be set aside, and an award of $188,215.38 substituted, made up as follows:–

1    Past economic loss:  $30,239.38

2.   Future loss as assessed by the trial
     judge (apart from reduced earning capacity)         24,244.00

Plus For reduced earning
capacity 60% of
$226,525.00  $135,915.00

     
     

Less 20% for
contingencies                    $27,183.00            108,732.00

     

3.   Pain and suffering etc.  25,000.00
  $188,215.38