Mazengarb v Riseley
[1990] TASSC 21
•1 June 1990
Serial No 15/1990
List "A"
COURT: SUPREME COURT OF TASMANIA
CITATION: Mazengarb v Riseley [1990] TASSC 21; A15/1990
PARTIES: MAZENGARB, Maria
v
RISELEY, Justin Lewis Miles
FILE NO/S: FCA 109/1989
DELIVERED ON: 1 June 1990
DELIVERED AT: Hobart
JUDGMENT OF: Cox, Underwood and Crawford JJ
Judgment Number: A15/1990
Number of paragraphs: 23
Serial No 15/1990
List "A"
File No FCA 109/1989
MARIA MAZENGARB v JUSTIN LEWIS MILES RISELEY
REASONS FOR JUDGMENT FULL COURT
COX J
UNDERWOOD J
CRAWFORD J
1 June 1990
Orders of the Court
Appeal allowed.
Judgment for $98,380.79 set aside and judgment for $73,380.79 substituted.
Serial No 15/1990
List "A"
File No FCA 109/1989
MARIA MAZENGARB v JUSTIN LEWIS MILES RISELEY
REASONS FOR JUDGMENT FULL COURT
COX J
1 June 1990
I agree with the reasons for judgment prepared by Underwood J The appeal should be allowed and the assessment of damages varied by reducing it by $25,000.00 to $73,380.79.
Serial No 15/1990
List "A"
File No FCA 109/1989
MARIA MAZENGARB v JUSTIN LEWIS MILES RISELEY
REASONS FOR JUDGMENT FULL COURT
UNDERWOOD J
1 June 1990
The learned trial judge assessed the respondent's damages as follows:
Pain, suffering and loss of amenities $30,000.00
Future economic loss $50,000.00
Future medication $ 1,000.00
Griffiths v Kerkemeyer component $ 1,120.00
Scheduled benefits paid by MAIB $16,276.79$98,380.79
On behalf of the appellant it was submitted that the amounts allowed for pain, suffering and loss of amenities and for "future economic loss" were manifestly excessive and that together, the sum of $80,000 allowed under those two heads of claim resulted in a judgment that was manifestly excessive. In the absence of specific error, learned counsel for the appellant accepted that, in order to succeed, it had to be shown that the award was "a wholly erroneous assessment of the damage suffered" (per Lord Wright in Davies v PowellDuffryn Associated Collieries Ltd [1935] 1 KB 354 at p360, approved in Gamser v Nominal Defendant (1976) 136 CLR 145 at p148) or that it was "grossly disproportionate to [the] injuries and consequences" (Planet Fisheries Pty Ltd v La Rosa& Anor (1969) 119 CLR 118 at p124).
On 14 June 1986 the respondent, then aged 18½, was injured when the car in which he was travelling as a back seat passenger, hit an HEC pole. He suffered a crush fracture to the first lumbar vertebrae with some encroachment into the lumbar canal but without spinal cord or nerve root compression. The fracture united and consolidated. By the following year there was radiological evidence of early degenerative change at and just above the fracture site. There was also evidence of Scheuermann's disease at T8, a pre–existing asymptomatic condition which appears to have no significance in the assessment of the respondent's damages.
After the accident, the respondent was taken by ambulance to the Royal Hobart Hospital where he remained as an in patient for three weeks. While in hospital, the respondent experienced extreme pain at and around the site of the fracture and was almost wholly immobilised. He was discharged home in a back brace and, for some weeks, was entirely dependent on his parents. The respondent considered that he was not improving as he should have been and consulted Mr Turner, the orthopaedic surgeon. As a result of that consultation he spent two weeks as an in patient at St Helen's Hospital undergoing complete rest and physiotherapy.
The respondent then returned home and his mobility gradually improved over the next five or six months. By January 1987 he felt well enough to resume work.
The respondent has been left with some permanent residual disability. It can be summarised as follows:
1Intermittent pain at the fracture site associated with activities such as prolonged sitting or standing in one position, bending or lifting and carrying out tasks such as vacuuming and scrubbing floors.
2Relief from pain is usually obtained fairly readily by discontinuing the activity, rest and by ensuring that he does not remain in one position for any length of time.
3Occasionally, the respondent resorts to the use of non–prescribed analgesics.
4Any activity which places stress on the injured spine such as scuba diving, lifting heavy weights, prolonged bending and stooping and heavy manual work must be avoided.
5There is a prospect of an early onset of symptoms from trauma related degenerative change at the fracture site but no assessment can be made of the likelihood of the prospect becoming a reality.
6Many of the social pursuits followed by the respondent prior to the accident such as sailing, scuba diving, bush walking, disco dancing and the like are no longer open to him.
The learned trial judge summed up this aspect of the respondent's case at p7 of his reasons for judgment in the following terms:
"To sum up, the plaintiff had severe initial pain as a result of this spinal injury. He was hospitalised for a short time and when his condition did not improve upon being sent home, he was re–admitted to hospital for further treatment. Thereafter, his condition gradually improved. He is however, left with significant disabilities for a young man. He is precluded from that sporting activity which gave him the greatest pleasure, namely scuba diving, and he is also restricted in his pursuit of other leisure activities."
It is necessary to refer in some detail to the respondent's pre and post accident employment history and to his principal pre–accident leisure pursuit of scuba diving.
The respondent was educated to Grade 10 level at the Geilston Bay High School where he did quite well academically. His favourite subjects were science, maths, metalwork and cooking. The respondent started the 1984 academic year at a matriculation college. After three or four months, to satisfy his desire to earn money, the respondent left college and eventually got his first job. It is convenient to set out his employment history in tabular form.
1Saveway Foods for six months as a junior clerk with occasional storeman duties.
2Coles–Myer for an undetermined period ending September 1985, as a part–time (four hours per day, three days per week) cashier and clerk in the credit office.
3Kings Trailers during 1984 for a few days' work on call from the Commonwealth Employment office as a general labourer.
4GJ Coles intermittently working at night stocking supermarket shelves.
5Government Printing Office from September 1985 until accident (14 June 1986) as a costing clerk giving occasional assistance with lifting and stacking paper.
6In addition to the foregoing the respondent earned money between leaving matriculation college and the date of the accident:
(a)on odd occasions on call by the Commonwealth Employment Service at different jobs.
(b)at night as a driver delivering pizzas.
(c)at weekends on average twice a month, scrubbing the hulls of boats whilst they were still in the water.
7In February 1987 for ten days at Twentieth Century Plumbing as an office clerk.
8.Between April and July 1987 with Featherby Kingston Pty Ltd, Engineers, as a trainee computer draftsman.
9Francis Keen, Insurance Agents of Gold Coast, Queensland for two months as an insurance broker.
10Since leaving Francis Keen the respondent held five different positions, all with insurers or insurance brokers, either in Brisbane or Sydney. He experienced no difficulty in obtaining such work. At the date of trial, the respondent was employed by Mercantile Mutual Limited and earning a gross weekly income of approximately $400.00. The respondent said that he believed that he was good at his work and that he saw himself remaining in the insurance broking business for the foreseeable future. The nature of his work was such that he was able to carry it out unimpeded by the injury sustained in the accident.
Before the accident, the respondent went scuba diving on an average of about two weekends a month. It was a leisure pursuit that gave him considerable pleasure. As mentioned, he was able to earn some money from it by cleaning hulls of boats for between $30 and $50 each. It was accepted and the learned trial judge so found, that, by reason of his injuries, scuba diving was an activity no longer open to him. In his evidence, the respondent said that before the accident he had hoped that at some time, he would be able to get into either part time or full time work in the diving industry or possibly join the Navy and qualify as a diver. He said that whilst he enjoyed his work in the insurance industry he would have liked to have been able to work at some occupation connected with diving. Although the respondent had attended some Navy recruitment lectures and films when at school and casually discussed the possibilities of entering a diving career with a few people, there was no substantial evidence to warrant the inference that, on the balance of probabilities, the respondent would have earned income as a diver had the accident not intervened. The learned trial judge said this at p2:
"It is claimed that his physical restrictions have also resulted in a loss of earning capacity. He is now employed as an assistant underwriter with the Mercantile Mutual Insurance Company in Chatswood, Sydney but it was claimed that he may have had a career in the Navy as a scuba diver. Figures were placed before me to suggest that his current earning capacity is less than it would have been had he joined the Navy, however I regard the suggestion that he would have qualified as a frogman had he been admitted into the Navy on that basis as somewhat speculative."
There is no challenge to any finding of fact made by the learned trial judge but on the hearing of this appeal each counsel sought to place a different emphasis on his Honour's expression, "somewhat speculative". His Honour went on to say:
"I also think that there is a strong inference to be drawn from the career path he has taken since the accident that his present employment in the insurance industry offers relative security with reasonable future prospects. Accordingly, there is no sound basis for adopting a mathematical approach to the assessment of damages under this head. This is not to say that he will not suffer from substantial back pain and possible temporary disablement as a result from time to time in the future.
Account must also be taken of the fact that a number of employment prospects are now closed to him. I have already mentioned scuba diving and it is plain from his pre–accident employment history that he had many jobs requiring heavy lifting, bending and general physical fitness. He is now precluded from undertaking these activities."
It was central to the submission made on behalf of the respondent both at the trial and on appeal that the respondent was entitled to be compensated on the basis that he had lost the capacity to earn income from occupations involving manual labour and particularly as a diver. Evidence was tendered which showed that once trained, a seaman diver in the Navy earned $468.00 gross per week and, in common with other Navy personnel, was entitled to receive other benefits such as subsidised housing and food. Evidence was tendered of awards made under the Conciliation and Arbitration Act 1904 (Cth.). Learned senior counsel for the respondent submitted that this material showed that a person employed as a diver at the time of trial earned $800.00 per week. However, the material referred to does not tend to prove that at all. It was an amendment made on 12 June 1988 to the Professional Divers' Principal Award, 1986. The Principal Award was not tendered in evidence. Without it, the amendment is impossible to understand. The latter refers to divers under para24(a)(i) of the Principal Award earning $800.30 per week and to divers under para40(a) earning $487.60 per week. In the absence of the Principal Award the prerequisites to entitlement to receive either amount cannot be determined.
There was no evidence of the demand for divers either in the Navy or in industry and no evidence given of the working life of a diver.
The respondent is entitled to compensation for the lost opportunity to earn income from manual work and diving or, to compensation for "the loss of diminution of earning capacity insofar as it is likely to cause financial loss in the future ...". Per Gibbs C.J and Wilson J in Todorovic & Anor v Waller (1981) 150 CLR 402 at p411.
With respect to cases involving young people whose career path has not been determined or settled Nettlefold J said this in Martin v Howard [1983] Tas R 188 at pp201–202:
"A category of cases which has a distinct bearing on this case is exemplified by such decisions in the High Court as Hutchison v Sward [1966] ALR 1021 and Wade v Allsopp (1976) 10 ALR 353. The essential feature in that category of cases is that a young plaintiff has been seriously injured but, being young, his pre–accident capacity cannot be ascertained as the capacity of an established mature worker can be ascertained. You must endeavour to ascertain what his potential was as best you can and compare that with his potential in his injured state. The critical point is that what he is entitled to be compensated for is the loss of the chance of achieving a greater level of reward during his working life than he is capable of achieving in his injured state. But there is a substantial difference between compensating for the loss of a chance and compensating for the destruction or impairment of a proven capacity.
The respondent being only 17 years and a half when injured, it was necessary to form some estimate of what his future would have been but for the accident and to compare it with his likely future prospects in his post accident condition. In the case of such a young person what is to be compensated is the loss of a chance to earn unimpaired by the accident–caused injuries and, in evaluating that chance, due regard must be had not only to all the normal external vicissitudes of life but also to the possibility that, for reasons to himself, a youth's future may not justify the promise of his early years."
The learned trial judge correctly observed that the assessment of damages for diminution of earning capacity could not be achieved by resort to mathematical formulae. It calls for a matter of judgment. Even if the respondent had become a Navy diver, at the date of trial the net difference between the earnings gained from that occupation and his then earnings was in the order of only $40.00 per week. There was no evidence to suggest that generally, the respondent's former capacity to earn income from labouring work would have been productive of more income than that which he is able to derive from the utilisation of his residual capacity. Consideration of the assessment must take into account the finding by the learned trial judge that the respondent may suffer "possible temporary disablement" from time to time, the prospect of increased disablement due to symptomatic degenerative changes and the loss of income being earned at the date of the accident cleaning the hulls of boats. In addition, the respondent's evidence indicated that he had some manual skills working on engines, boats and the like. It would be appropriate to take into account any lost capacity to save expenditure by reason of having to engage others to do work on his own motor vehicle, house or boat that, but for his disabilities, would have been done by the respondent.
However, making full allowance for all these matters and giving full weight to the advantage the learned trial judge derived from seeing the witnesses and hearing the evidence, I have reached the conclusion that the sum of $50,000 allowed for diminution of earning capacity is manifestly excessive and that a proper sum to be allowed under this head of damage is $25,000.
With respect to the sum of $30,000 for pain, suffering and loss of amenities, learned counsel for the appellant conceded that it was difficult to sustain an argument that it was manifestly excessive. Although this ground of appeal was not abandoned, no argument was addressed to support it. The learned trial judge said at p8 of his reasons for judgment:
"As to the former (pain, suffering and loss of amenities) it is necessary to bear in mind that young men or women have to carry the injury from which they suffer for an extended period of time. They are also frequently precluded from vigorous, healthy outdoor exercise during those years when they are most likely to be attracted to this form of activity for both physical and social reasons."
In my opinion, his Honour correctly categorised the important matters relevant to an assessment under this head of damage to which should be added of course, the extremely painful and disabling period immediately following the accident. The evidence demonstrated that, prior to the accident, the respondent derived a great deal of enjoyment from a wide range of leisure activities involving considerable physical activity most of which he cannot now pursue by reason of his injury. Further, there was evidence that sexual intercourse precipitated pain in the lower half of his back.
the top end of the range, I am unpersuaded that it can be said to be totally disproportionate to the injury and loss sustained.
Accordingly, I would allow the appeal and vary the assessment by reducing it by $25,000 to $73,380.79.
Serial No 15/1990
List "A"
File No FCA 109/1989
MARIA MAZENGARB v JUSTIN LEWIS MILES RISELEY
REASONS FOR JUDGMENT FULL COURT
CRAWFORD J
1 June 1990
I have had the advantage of reading the reasons for judgment of Underwood J I agree with them and the orders he proposes.
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