Malcolm Edward Blake and Nominal Defendant v Bill Giannopolous Tuan Anh Chung v Bill Giannopolous No. 4205 Judgment Nos. SCGRG 93/7, SCGRG 93/8 Number of Pages 6 Damages

[1993] SASC 4205

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA KING CJ(1), MILLHOUSE(2) AND DEBELLE(3) JJ

CWDS
Damages - measure and remoteness of damages in actions for tort - personal injury. Wrongs Acts 35a.

HRNG ADELAIDE, 6-7 October 1993 #DATE 7:10:1993
Counsel for appellants:     Mr R Soulio
Solicitors for appellants:    Piper Alderman
Counsel for respondent:     Mr A C Collett
Solicitors for respondent:    Johnston Withers

ORDER
Appeal allowed, judgment therein varied by reducing amount of same to the sum of $63,588.60, and the judgment with respect to the second appeal, appeal allowed, judgment varied by reducing the amount of the same to the sum of $5,163.03.

JUDGE1 KING CJ There are two appeals before the court. Both are appeals by defendants in actions brought by the respondent to the appeals for damages for injuries sustained in two separate accidents. 2. The subject of the first action is an accident which occurred, at Waikerie, on 2 March 1986. A vehicle, in which the respondent was travelling, was forced off the road by a semi trailer and the respondent suffered musculo-ligamentous injury to the neck and the back. 3. While he was still recovering from that accident, on 4 December 1987, he was involved in a further accident. That was a collision between two motor vehicles. 4. The respondent sued the nominal defendant for damages in respect of his injuries sustained in the first accident. Liability was not in dispute and the damages were assessed in the District Court. 5. The nominal defendant has appealed against the judgment entered in consequence of that assessment of damages. 6. The respondent sued the driver of the vehicle, with which his vehicle collided, for damages for the injury which he sustained in the second accident. Liability was agreed on the basis that the respondent would recover 85% of his assessed damages. The damages with respect to that accident were assessed, by the same District Court judge as assessed the damages for the first accident, as part of the same trial. The defendant in those proceedings has appealed against the judgment entered in consequence of that assessment of damages. 7. With respect to the first action, the learned judge awarded $12,500 for past non-economic loss and $5,000 for future non-economic loss. He awarded $40,000 for past economic loss and $10,000 for future economic loss. He allowed the sum of $2,485 for interest with respect to the non-economic loss and $10,000 for interest with respect to the economic loss. He entered judgment against the nominal defendant in the sum of $82,338.60. With respect to the second accident, the learned judge assigned a numerical value of 4 on the scale prescribed by s.35 (a) of the Wrongs Act, which, by that time, had come into operation. I should say, parenthetically, that that section was not in force at the time of the first accident. In relation to the second accident his Honour, therefore, allowed the sum of $4,000 for non-economic loss. He allowed the sum of $2,000, for economic loss and allowed a further amount for special damages. The total assessed damages with respect to the second accident were $7,191.80. That amount was reduced to $6,113.03 by reason of contributory negligence. An amount of interest of $750.00 was included in the judgment. Judgment was entered in the sum of $6,863.03. 8. The respondent sustained a musculo-ligamentous injury, to the back and also to the neck, in the first accident. There was progressive improvement, over the period of 20 months, between the date of the first accident and the date of the second accident. The respondent remained incapable of performing heavy work at the time of the second accident but he had recovered a considerable degree of his working capacity by that date. He suffered a traumatic stress disorder in consequence of the rather horrifying experience of the first accident but that resolved by about mid 1988. The injury sustained in the second accident was an exacerbation of the musculo-ligamentous injury sustained in the first accident. By the date of the second accident, the symptoms in the neck had subsided but the respondent suffered renewed symptoms in the neck in consequence of the second accident. He suffered, also, some increase in the pain and discomfort in the back in consequence of the second accident. 9. Nevertheless, by mid 1988, that is to say about six months after the second accident, the exacerbation caused by that accident had substantially subsided and the respondent was substantially back in the condition which existed just before the second accident. There was some persisting discomfort but, after mid 1988, I think that it was of little significance. 10. The respondent has suffered some continuing discomfort and physical disability during the approximately four and a half years which elapsed between mid 1988 and the date of judgment. 11. The learned judge, having considered all the evidence concluded that that disability was, as he put it, at the lowest end of the scale. At least for some time it was exacerbated, to some degree, by feelings of anxiety and a functional overlay. 12. I think it is clear, however, on the evidence that the respondent had, at least during that four and a half years, a considerable working capacity. The relatively minor disability from which he suffered would, on the judge's finding, have precluded him from performing the heaviest type of work, that is to say work which involved frequent heavy lifting. 13. On the judge's finding it did, in fact, preclude him from accepting some offers of employment during that period. The evidence, however, as to those offers of employment is nebulous as to the amount of work involved, the likely duration of the work and what the respondent might have earned from them. The case is greatly complicated, moreover, by the fact that the respondent did not have a proven, regular record of work prior to the first accident. He was aged 23 years at the time of the first accident, having left school at the age of 17 years. During that period between the age of 17 and 23, he had what I think can fairly be described as only relatively short periods, in fully remunerative employment. There were long periods of unemployment. There were long periods during which he was in receipt of unemployment benefit. I do not intend that observation in any way which reflects upon the respondent. The court is well aware of the difficult employment conditions, particularly for young people, at that time and, indeed, at the present time and it may well be that he was anxious for work but unable to find any. At the time of the first accident, he was on his way to the fruit growing areas in an endeavour to obtain work, picking grapes. 14. There was evidence from the respondent and the respondent's brother, that the respondent's brother intended to offer him employment, and that the respondent intended to accept it, in a seafood shop which the brother was establishing at that time. The brother's intention, according to the evidence, was to offer the respondent employment as an apprentice fish scaler at sometime in the future - possibly six months after the date of the first accident - by which time it was hoped that the business would be sufficiently established to enable that to be done. The brother gave evidence that he did not persist with this plan because the work involved a degree of heavy lifting, which would have been beyond the respondent's capacity, following the accident. 15. No matter how one looks at that, however, it was no more than a plan for the future. It appears that, in fact, the brother did employ an apprentice fish scaler but that he remained in the employment for only six months. The reason for the cessation of that employment does not appear. 16. The finding of the learned judge as to these matters is as follows:
    "The period of time since the first accident has been a most
    difficult one in so far as the economy and the labour market have
    been concerned, and it is common knowledge that young people with
    no physical disabilities and a good standard of education and
    qualifications have had great difficult in finding work. The
    plaintiff of course had been without employment for considerable
    periods of time before the first accident and had no proven work
    record to indicate that he had in any event the inclination or
    the ability to put in and keep on putting in the ten or eleven
    hours a day doing the sort of work required in his brother's shop
    or to do and keep on doing the sort of work required at Mr
    Fellepa's factory. That will be taken into account together with
    the usual contingencies." 17. In considering whether the amount awarded to the respondent was an erroneous estimate of the loss which he suffered in respect of the first accident, it is necessary for this court to bear in mind that, for the greater part of the period under consideration, there was only a partial reduction in the respondent's working capacity and that the degree of the disability was relatively minor. It resulted from a musculo-ligamentous injury and, on the judge's findings, the disability was at the lowest end of the scale. What it prevented him from doing was work involving repeated heavy lifting. The court is allowed to know that, nowadays, the area of employment which requires frequent heavy lifting is a relatively small part of the employment area. The inability to do that sort of work put the respondent at a disadvantage on the labour market but the extent of that disadvantage has to be measured having regard to the very considerable area of employment which is open to a person, without having to engage in frequent, heavy lifting. Of course, it is not to be ignored that the mere fact of the respondent having sustained an injury, in itself, puts him at a disadvantage in competing with fully fit persons with an injury-free history. The court also has to endeavour to estimate what the respondent might have earned had he not been injured. There are very considerable uncertainties surrounding the financial impact of these injuries on this respondent arising out of the employment record to which I have referred. These factors, undoubtedly, have made it a difficult case for assessment by the learned trial judge. There were unquestionably considerable discretionary elements in the judgment which he had to make. This court is slow to interfere with an assessment of damages which depends upon discretionary elements of that kind. The court will do so only if it is satisfied that the estimate of the damages made by the trial judge is a wholly erroneous estimate. 18. I am struck in the present case by the fact that the sum of $40,000 to compensate this respondent for his economic loss over a period of about 6 years or a little more - putting aside the 6 months following the second accident - represents a substantial proportion of the total value of the earning capacity of an unskilled person for that period of time. 19. There are great uncertainties as to whether the respondent would have earned money during that time if had he had not suffered the injuries and, if so, to what extent had he would have earned such moneys. 20. There are also very considerable questions as to the extent to which his ability to gain employment was, in fact, restricted by the relatively minor degree of his disability. 21. I have reached the conclusion that the sum of $40,000 is a wholly erroneous estimate of the loss which the respondent sustained during the period from the date of the first accident to the date of judgment, in consequence of the injuries sustained in the first accident. 22. I think that the most that could reasonably be awarded under that head is $25,000 and I would interfere with the judgment for the purpose of reducing the amount of $40,000 to $25,000. 23. The amount allowed for interest on the economic loss must be correspondingly reduced to $6,250. 24. I would, therefore, allow the appeal with respect to the first accident and would reduce the amount of the judgment to the sum of $63,588.60. 25. The issue with respect to the assessment relating to the second accident is as to the numerical value which was fixed by the learned trial judge to reflect the pain and suffering and impairment of enjoyment of life which resulted from the second accident. 26. At the time of the second accident the respondent was already an injured person. He was suffering discomfort from the back, although his symptoms in the neck had subsided. He is therefore to be compensated for the discomfort which he suffered in his neck during the 6 month period between December of 1987 and the middle of 1988 and for some very slight degree of discomfort suffered for a time thereafter in the neck. He is also to be compensated for the extent to which the back symptoms caused him additional suffering during the 6 month period to which I have referred, and perhaps a little thereafter. 27. A numerical value has to be fixed on a scale which recognises 60 as the numerical value to be applied to the worst type of case. It is difficult to fix satisfactory numerical values, particularly in the lower range in relation to a scale so framed. It seems to me, however, that a figure of 4, that is to say 1/15 of the worst possible case, is really so high as to be wholly disproportionate to the sufferings which are to be compensated for, resulting from the second accident. The figures in money terms are small but it is necessary for the court to endeavour to preserve a proper proportion between the non-economic loss actually sustained and the worst type of non-economic loss which is to be compensated for by a numerical value of 60. I consider that the appropriate numerical value in the present case would be 2 and although the difference in money terms is small, I think it is the duty of the court to say that a numerical value of 4 is a wholly erroneous estimate and to make the appropriate adjustment. 28. In my opinion, therefore, the appeal with respect to the second accident should also be allowed and the damages should be reduced by the amount of $2,000. Eighty-five per cent of that sum is $1,700 and the amount of the judgment should be reduced by that amount.

JUDGE2 MILLHOUSE J I agree with the Chief Justice.

JUDGE3
DEBELLE J: I agree.