My Van Nguyen Tran v the Government Insurance Office of Australia - [2000] NSWCA 217

NEW SOUTH WALES COURT OF APPEAL

CITATION: My Van Nguyen Tran v The Government Insurance Office of Australia [2000] NSWCA 217

FILE NUMBER(S):
40270/99

HEARING DATE(S): 3 August 2000

JUDGMENT DATE: 16/08/2000

PARTIES:
My Van Nguyen Tran (Appellant)
The Government Insurance Office of Australia (Respondent)

JUDGMENT OF: Mason P Stein JA Fitzgerald JA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 9451/97

LOWER COURT JUDICIAL OFFICER: Naughton DCJ

COUNSEL:
P Menzies QC/W Ward (Appellant)
J D Hislop QC/M Ward (Respondent)

SOLICITORS:
Gajic & Co Solicitors (Appellant)
McLachlan Chilton Solicitors (Respondent)

CATCHWORDS:
DAMAGES - non-economic loss - past economic loss - ND

LEGISLATION CITED:

DECISION:
See para 46 for Orders

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA           40270/99
DC      9451/97
MASON P
STEIN JA
FITZGERALD JA

Wednesday, 16 August 2000

My Van Nguyen TRAN v THE GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES

Facts
The appellant was a weaver, working a permanent night shift of 12 hours (7 pm to 7 am) each day for 5 days per week, including 20 hours overtime. On 28 January 1989 the appellant and her husband were returning from a holiday and had a head on collision with a semi-trailer. The appellant suffered multiple injuries and her husband was killed in the accident.
At first instance
Liability having been admitted, Naughton DCJ assessed the appellant’s damages.
His Honour found on the balance of probabilities that if the appellant had not had the accident she would have had at least one child within 2½ years of the accident. He reasoned that she would have been off work for a least 9 months with a baby. He reduced the appellant’s economic loss for the 2½ years period after the accident by a 30% discount.
His Honour found that 2½ years after the accident the appellant was fit to return to her pre-accident work as a weaver for a normal working week of 38 hours. However, she was not fit to work the 60 hour week she had been working. His Honour did not award any damages for loss of overtime.
His Honour found that a further accident the appellant suffered on 11 June 1993 causing injury to her arm was not causally related to the 1989 car accident.
The appellant’s non-economic loss was assessed at 60% of a most extreme case.
In giving judgment in the appellant’s favour his Honour awarded her one-half of her costs and also excluded any costs referable to material she had presented in court additional to that presented at an earlier arbitration.
The appeal
The appellant submits that his Honour erred: in misdirecting his discretion on the issue of costs; in finding on probabilities that the appellant would have had one if not two children within 2½ years of the accident; in discounting past economic loss by 30%; and in failing to find that for the period 2½ years after the accident until the date of trial, and from the date of trial, the appellant remained incapacitated for her pre-injury employment for 20 hours a week. The appellant submits that she was entitled to receive compensation for her incapacity to perform 20 hours overtime per week caused by the injuries received in the car accident. The respondent cross-appeals against the finding on non-economic loss.
Held (Stein JA, Mason P and Fitzgerald JA agreeing)
His Honour’s finding on probabilities that the appellant would have had a child within 2½ years from 28 January 1989 is against the evidence and not open. The usual discount of 15% for vicissitudes is appropriate and not 30%.

The appellant suffered an injury on 11 June 1993 and would not have been able to return to her work as a weaver. It would be clearly physically impossible, particularly the working of overtime. The appellant is entitled to be compensated for her loss of overtime income confined to the period from 28 July 1991 (2½ years after the car accident) to 11 June 1993, with a 15% discount. The 1993 accident, the evidence and his Honour’s findings preclude any claim for overtime after the trial.
The cross-appeal on non-economic loss fails. 60% of a most extreme case is within the discretionary range and the Court is not justified in intervening.
His Honour’s costs order cannot be justified by any proper exercise of discretion. The appellant was entitled to costs of the trial, less the unchallenged order that they not include certain specific evidence called by the appellant.
Orders
1. Appeal allowed with costs.
2.Verdict and Judgment in favour of the appellant in the sum of $222,203.15 be set aside.

3.A verdict and judgment in favour of the appellant in the sum of $247,692.29 be substituted.

4.The respondent pay the appellant’s costs of the proceedings below with the exception of those concerning ‘Dial an Angel’, Mr Carroll and Workcase Pty Ltd.

oOo
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA           40270/99
DC      9451/97
MASON P
STEIN JA
FITZGERALD JA

Wednesday, 16 August 2000

My Van Nguyen TRAN v THE GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES
JUDGMENT

MASON P: I agree with Stein JA.
STEIN JA: This appeal is brought by the appellant, My Van Nguyen Tran, from a judgment of Naughton DCJ on quantum of damages for personal injury. It is confined to the following grounds:
1. His Honour erred in misdirecting his discretion on the issue of costs.
11.His Honour erred in finding that on the balance of probabilities, within 2½ years of the accident the plaintiff would have had one if not two children. This finding was against the evidence and the weight of the evidence.
12.His Honour erred in discounting past economic loss by 30% when there was no evidence to support such discount and a discount at all was against the evidence and the weight of the evidence.
Senior Counsel for the appellant, Mr Menzies QC, sought leave to add two additional grounds:
12A.His Honour erred in failing to find that for the period commencing two and a half years after the Plaintiff’s accident and until the date of trial, the Appellant remained incapacitated for her pre-injury employment for 20 hours per week.
12B.His Honour erred in failing to find that from the date of trial the Appellant remained incapacitated for her pre-injury employment for 20 hours per week.
The respondent opposed the amendment.
Also, the respondent sought leave to cross-appeal against his Honour’s finding on non-economic loss. Leave was opposed by the appellant. I can see no reason why leave to cross-appeal should not be granted and I would give leave.
As to the new grounds of appeal (12A and 12B), the respondent complains, with justification, about the late notice of the proposed amendment. The delay, it is said, may cause prejudice to the respondent because there is insufficient time to make inquiries. I do not accept this submission. Central to the respondent’s complaint is its own failure to adduce evidence at the trial from the appellant’s previous employer concerning the continuing availability of overtime. The hearing started on 25 February 1999 and finished on 12 March 1999. The respondent was aware of the need to adduce such evidence on 1 March 1999 when it called for the production of a letter from the employer. The call was not answered by production. There was ample time for the respondent to take steps to ensure the production and tender of the letter. Apparently, it did nothing to follow the matter up. The respondent cannot now use its own default to oppose the leave sought by the appellant. I can see no prejudice. Leave to amend should be granted.
The appellant was born in Vietnam on 31 March 1964. In early 1983 she left Vietnam for Singapore. She subsequently arrived in Australia on 25 August 1983 and was soon in regular employment. Before coming to Australia she was fit and well and a competitive athlete. She started work with Edmondson Bros (Mfg) Pty Ltd on 4 September 1986 as a weaver, working a permanent night shift of 12 hours (7 pm to 7 am) each day for 5 days per week. This meant that, as at the date of her motor vehicle accident (20 January 1989), she was earning $669.84 per week gross and $466.80 per week net. On 20 December 1986 she married. Her husband was working at the same factory and the same shift, he being a foreman. According to her evidence, the appellant used her wages to pay ‘the mortgage and all the bills and the loan for which we bought the car’.
The couple went on holiday to Queensland and were returning home on 28 January 1989. The appellant was a front seat passenger and her husband the driver. There was a head-on collision with a semi-trailer. The appellant’s husband was killed in the accident. The appellant suffered multiple injuries.
The trial took place 10 years later. Liability was admitted and his Honour’s task was to assess damages. One issue for the Court was, given the appellant and her husband’s intention to have a family, what effect would that have on the appellant’s working life. It was relevant to her claim for economic loss.
His Honour made the following findings:
The plaintiff emphasised that she loves children and has always wanted and intended to have two of her own. I accept that evidence. She gave conflicting evidence about staying at home to look after them as distinct from going to work. This is relevant to her claim for economic loss. On some occasions during her evidence she said that if she had children she would after a few months put them into paid child care and resume her pre-accident employment. She also said, however, that she did not know “yet” whether if she had children she would stay at home to look after them. Her pre-accident employment was a permanent night shift of 7 pm to 7 am, five day a week. I find her evidence as to intended child care to be conflicting and unsatisfactory.
I will return to these findings.
His Honour found that the appellant was fit to return to her pre-accident work as a weaver for a normal working week of 38 hours, 2½ years after the accident. That is, that she was fit for a 38 hour week but not for the 60 hours per week that she had been working prior to the accident.

The trial judge found that it was likely that if the appellant had not had the accident, she would have had at least one child within 2½ years of 28 January 1989. Indeed, possibly two children.
He added:
The plaintiff said that if she had had a child she would, after looking after it at home for eight months, have placed it in child care and returned to work “just as before”. I find that to be an exaggeration. It was not proved, or even attempted to be proved, that child care facilities would have been available between 7 pm and 7 am five days a week. Nor was I satisfied that after returning to work after having a child the plaintiff would have worked 12 hours a day for five days a week. I am prepared to believe that she may have returned to work for the standard seven and a half hours a day for five days for say 38 hours a week.
His Honour reasoned that the appellant would have been off work for at least 9 months with a baby. He said:
I discount that amount by 30 percent for past vicissitudes. That discount reflects the probability that the plaintiff would, but for the accident, have had at least one child within two and a half years of 28 January 1989. It also reflects the probability that she would have not have returned to work for 12 hours a day for five days a week. It also reflects the possibility that the plaintiff may have had difficulty in finding employment after being off work for nine months to have and look after a baby. It also reflects the possibility that the plaintiff may not have remained sufficiently fit and/or motivated to continue working at the level of 12 hours a day for 7 pm to 7 am five days a week for another two and half years.
This resulted in his Honour reducing the appellant’s economic loss for the 2½ year period after the accident by $18,205.
As I have already mentioned, the trial judge said that the appellant gave conflicting evidence about staying at home to look after any children she might have, as distinct from going to work. He quoted an illustration and concluded that her evidence was conflicting and unsatisfactory on the point. In my estimation, this was not the case and his Honour’s reference to the evidence was both inaccurate and irrelevant.
In particular, it was inaccurate to say that the appellant said she did not know ‘yet’ whether, if she had children, she would stay at home to look after them.
The relevant evidence was given on the fifth day of her cross-examination. She was asked the following question:
Q.Madam if your husband is given permission to migrate to this country and if his financial circumstances permit him to support the two of you and any children you have, do you think you might in those circumstances, be content to remain at home and look after the children on a full-time basis?
She answered ‘I do not know it yet’. The question was asked in March 1999 (10 years after the accident) and related to her newly married Vietnamese husband, described by his Honour as ‘wealthy’. In those circumstances, she was asked whether she would be content to stay at home and look after the children? Her answer was equivocal. Nothing should be read into it. The appellant was giving evidence through an interpreter. Moreover, the question was irrelevant to the issue which his Honour was considering. The fact is, that trawling through almost 500 pages of transcript, I am unable to see that the appellant gave any conflicting evidence about what her intentions had been about having children, their child-care and returning to work. Indeed, such evidence as the appellant gave was generally consistent. Essentially it was that she and her deceased husband had planned to have two children. When the child reached 8 months of age, she would place the baby in child-care and return to work, to the same 60 hour per week shift. Her intention was to continue to work until she was too old to do so.
Notwithstanding an exhaustive cross-examination, the appellant did not vary from this evidence in any significant way. Indeed, she was barely asked about it. On this issue, his Honour should not have described her evidence as conflicting and unsatisfactory.
His Honour found that the appellant would probably have had at least one child within 2½ years of January 1989. It is significant to note the appellant was not cross-examined about when it was that she planned to have a child. If she had been asked, she might well have answered, in 4 or 5 years time (that is from January 1989).
One may be entitled to conclude that it was possible that the appellant might have had a child within the 2½ year period from January 1989. However, given that she had been married for only 2 years, was earning a significant income from the 12 hour night shift and using it to pay off the family debts, I am wholly unable to see how it may be concluded on the probabilities that the appellant would have had a child within the 2½ year period mentioned. The finding of his Honour was against the evidence and not open.
The discount of 30% of the closed 2½ year period after the accident was, in my opinion, not justified. The circumstances are such that the usual discount for vicissitudes of 15% is appropriate.
Accordingly, the deduction from $60,684 (being the net income loss during the period) should be $9,102.50, viz. $51,581.50 damages for that period of past economic loss should be awarded.
I turn to the new ground 12A. This is concerned with the period between 28 July 1991 (2½ years after the accident) and the date of the hearing (March 1999). It is submitted that the appellant was entitled to receive compensation for her incapacity to perform 20 hours overtime per week caused by the injuries received in the motor vehicle accident.
His Honour had found, as I earlier mentioned, that while the appellant was fit (physically and psychiatrically) to return to work in July 1991, she was fit to work only a 38 hour week and not the 60 hour week that she had been working prior to the accident. The appellant submits that the evidence demonstrates that the appellant remained unable to perform the overtime up to the date of trial. It is submitted that she is entitled to be compensated for that reduced earning capacity.
The submission encounters an immediate problem because of a further accident the appellant suffered on 11 June 1993. Apparently she had a fall which caused injuries to her right arm, assessed at a 20% diminution in its usefulness. His Honour found that the accident was not causally related to the 1989 motor vehicle accident.
The appellant gave extensive evidence about the effect that the second accident had on her right arm. The evidence demonstrates that she could not return to the work of a weaver. This occupation would clearly have been physically impossible, particularly the working of any overtime. Senior counsel for the appellant appears to accept this as the position. Accordingly, the claim under ground 12A would be confined to the period from 28 July 1991 to 11 June 1993 (approximately 22½ months).
In my opinion, the appellant is entitled to be compensated for her loss of overtime income during this period. But for the accident, the probabilities are that she would have continued to work the 20 hours per week overtime. The extra income was clearly important to her. She was still young (27 years), with plenty of time to have a family, and she had the desire to establish a home and pay off the family debts. The claim would, of course, need to be discounted for the possibilities that she might choose to have a child in the period or that the overtime might reduce or cease to be available. The normal 15% discount is sufficient to cover these and other possible exigencies.
Utilising the weekly net overtime figures provided by the appellant for the relevant period leads to a net loss of overtime income of $19,278.40. This should be discounted by 15% leaving a net loss of $16,386.64.
My conclusion concerning the second accident on 11 June 1993 precludes any damages being awarded under ground of appeal 12B since it post dates the trial. In any event, the evidence and his Honour’s findings would preclude any claim for overtime after the trial in 1999.
Accordingly, the appellant is entitled to succeed in relation to her claim for past economic loss to the extent of $25,489.14 and the award for this head of damage should be increased to $67,968.14.
I turn to the cross-appeal since it may effect the remaining issue in the appeal, ie. his Honour’s costs order. The appellant’s non-economic loss was determined at 60% of a most extreme case. This translates into $155,400.
The respondent maintains that 60% was excessive. It suggests that a finding of 35% ought be substituted and the damages be reduced to $90,650.
In a judgment which was unfavourable to the appellant on most issues and critical of her credit and reliability as a witness, the trial judge found that her multiple injuries and sequelae were significant. His Honour went to considerable length to comprehensively consider the appellant’s injuries, their treatment and course, and her continuing medical problems.
It should be said at once that the finding of 60% of a most extreme case strikes one as generous in the circumstances. The question is whether it is so excessive that the Court should interfere and reduce it. After considerable thought I have concluded that the Court should not intervene.
I so conclude for a number of reasons. First, it must be accepted that the trial judge was in a very good position to assess the appellant. She was in the witness box for 5 days over a 13 day hearing. Second, the assessment of a percentage of a most extreme case is an inherently discretionary judgment. Minds will always differ on the percentage. The appellant’s initial injuries were many and varied and some quite serious. Their treatment was painful. The aftermath of the injuries was clearly shattering for the appellant causing her significant anxiety and depression. Her continuing disabilities, ten years after the accident, are not insignificant and may well continue for the rest of her life. The facial scarring, of course, will always be with her. His Honour made a careful and thorough assessment of the appellant’s non-economic loss.

In my opinion, 60% is within the discretionary range, albeit at the top, and the Court is not justified in intervening. The cross-appeal should be dismissed.
The remaining issue is the costs of the trial. In giving judgment in the appellant’s favour for $222,203.15 his Honour awarded her only one-half of her costs. In fact, he gave her less than 50% because he excluded any costs referable to the material from 'Dial an Angel’, Mr Carroll (an actuary) and Workcase Pty Ltd. This reduction is not challenged by the appellant.
The basis for his Honour’s departure from the normal rule of costs following the event is not completely clear. It seems to relate to extensive evidentiary material lead by the appellant at the trial, additional to that presented at the earlier arbitration. His Honour noted that the appellant had achieved a significantly more favourable result before him than before the arbitrator. It is unclear how his Honour used this fact. If it was to deny the appellant her full costs, then I think it would be wrong. If she had achieved a worse result before the Court than before the arbitrator, that might be different.
What his Honour seems to be saying is that the fresh evidentiary material did not assist the appellant and its calling was not justified. If that is what his Honour meant it is difficult to see how it justified the reduction of the appellant’s costs to less than one-half.
On behalf of the respondent, Mr Hislop QC submits that, in effect, his Honour decided the costs on an issue basis and the appellant lost on most issues. There are two answers to this submission. First, nowhere in his Honour’s reasons for decision on costs is there any reference to winning or losing on individual issues. Second, this was a quantum case, and his Honour found a verdict for the appellant of $222,203.15, including significant non-economic loss damages.
True it is that costs are discretionary and the Court will not interfere unless the exercise has miscarried. However, in my opinion, the costs order made cannot be justified by any proper exercise of the discretion. The appellant was entitled to the costs of the trial, less the unchallenged order that they not include certain specific evidence.
The increase in the damages for past economic loss and the dismissal of the cross-appeal fortify the view that his Honour should have ordered the respondent to pay the costs of the proceedings.
Orders
I would propose the following orders:
1. Appeal allowed with costs.
2.Verdict and Judgment in favour of the appellant in the sum of $222,203.15 be set aside.
3.A verdict and judgment in favour of the appellant in the sum of $247,692.29 be substituted.
4.The respondent pay the appellant’s costs of the proceedings below with the exception of those concerning ‘Dial an Angel’, Mr Carroll and Workcase Pty Ltd.
FITZGERALD JA: I agree with Stein JA.

OoO

LAST UPDATED: 16/08/2000