Pasvouris v Schmarr - [2007] SASC 61

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
PASVOURIS v SCHMARR
[2007] SASC 61
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Gray and The Honourable Justice David)
2 March 2007
DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES
APPEAL AND NEW TRIAL - APPEAL GENERAL PRINCIPLES - EXCESSIVE OR INADEQUATE DAMAGES - DAMAGES INADEQUATE
Appeal by a plaintiff against an award of damages - plaintiff suffered injuries from being struck by a motor vehicle whilst riding a motorcycle - trial Judge awarded total damages of $51,645 - whether the award for non-economic loss was inadequate - whether the award for gratuitous services was inadequate - whether the award for loss of earning capacity was inadequate - Held: appeal allowed - award of the trial Judge set aside and substituted with an award of $84,565.
Wrongs Act 1936 (SA) s 35A, referred to.

PASVOURIS v SCHMARR
[2007] SASC 61
Full Court; Doyle CJ, Gray and David JJ

DOYLE CJ: I agree with the orders proposed by Gray J. I agree also with his reasons. There is nothing that I wish to add.
GRAY J:
This is an appeal by a plaintiff against an award of damages.
On 22 March 2002, the plaintiff, Vasilios Pasvouris, when riding his motorcycle, was struck by a motor vehicle. As a result, he was thrown from his motorcycle, landing head first on the ground. At the time, he was 28 years of age.
The plaintiff was taken by ambulance to hospital and admitted as an in-patient. He was found to have sustained a fracture of the mid-shaft of the left ulnar in the lower arm, fractures to the proximal phalanx of the left finger and a fracture to the base of the fifth metacarpal. The plaintiff underwent an open reduction and internal fixation of the fractured left ulnar with a plate, and an open reduction and internal fixation of the fracture of the base of the left fifth metacarpal with K-wires. Following the operation he was left with his left forearm and hand immobilised in a plaster back slab. He also suffered an aggravation of a previous spinal injury. He was discharged from hospital on 24 March 2002, and subsequently reviewed as an out-patient.
The plaintiff worked with his brother in partnership in a gymnasium business. He had left school following Year 10, and worked in a number of unskilled jobs. He had undertaken a TAFE course in mechanics. After being unsuccessful in obtaining any work as a mechanic, the plaintiff assisted his brother with his taxi business. In 1998 the plaintiff and his brother purchased a franchise gymnasium. The gymnasium work involved a range of duties, including heavy lifting. The plaintiff, with his brother, attended to all maintenance work in the gymnasium, including the maintenance of a pool and spa.
Liability for damages to be assessed was accepted. The plaintiff’s claim for damages came on for hearing as an assessment in February 2006. The trial proceeded over some eight days, with evidence being led from the plaintiff, family members and expert advisers.
The trial Judge assessed the plaintiff’s damages, including interest, in the total amount of $51,645. The components making up the assessment included an allowance of $13,680 for non-economic loss, $3,500 in respect of gratuitous services and $25,000 in respect of loss of earning capacity. On appeal, the plaintiff complained about the award in respect of these components.
It is convenient to set out the trial Judge’s critical findings before coming to discuss the issues arising on the appeal. On the hearing of the appeal, these findings were accepted by the parties. With respect to the plaintiff’s left arm and hand injury, the Judge concluded:[1]
The evidence does however persuade me that the plaintiff has been left with some residual disability in the left wrist.
Dr Ormandy as late as January of 2006 noted that the base of the fifth metacarpal was tender to palpitation and still slightly swollen. Compared with the right hand the grip of the left hand in his view was reduced. I note that the plaintiff is a right handed person.
...
I find on the basis of the whole of the evidence that the plaintiff does have an ongoing disability as a result of the injury to the left wrist. The area hurts if he accidentally hits it in the course of his work or even if he sleeps on it at night. The effect of that injury is that the plaintiff needs to avoid some activities which require fine work involving precision movements with the hand. Examples of some of the work that the plaintiff would find difficult to perform now would be some areas of the pool maintenance and general maintenance of the spa and sauna, particularly changing the lights and aspects of the plumbing. To some extent the effects of the ongoing disability in the left wrist do overlap with the residual effects of the neck and back injuries which the plaintiff suffered prior to the accident on the 22March 2002. However, I accept that overall the additional disability as a result of the injury to the left wrist has left him unable now to perform tasks in and around the pool and spa which prior to the accident he was performing. I accept also that one of the reasons he now no longer does spotting for gym members is directly as a consequence of the injury to the left wrist. Once again that was a task that he performed from time to time prior to the accident.
...
Dr Ormandy was the only doctor to place a percentage on this functional disability of the left wrist in the order of about 15%. This finding needs to be reflected in the award for damages for past and future pain and suffering. It is of course relevant as well to the plaintiff’s loss of earning capacity.
[1] Pasvouris v Schmarr [2006] SADC 92 at [153], [154], [156], [158].
In regard to the plaintiff’s neck and back injury, the trial Judge concluded:[2]
On the basis of the evidence before me I conclude that the plaintiff did suffer a temporary exacerbation of his pre-existing neck and back injuries from the motor vehicle accident in 1996. On the basis of the evidence however I find that the exacerbation of those injuries and the symptoms from it had subsided after a period of about twelve months after the accident. There is no evidence to suggest that the symptoms which the plaintiff now suffers at least in regard to the neck and the back are materially different to the symptoms he was experiencing prior to the accident on 22March 2002.
[2] Pasvouris v Schmarr [2006] SADC 92 at [152].
It is important to record that the plaintiff had a long-standing disability in his right hand. The trial Judge concluded that this disability was congenital:[3]
I do not accept that the hyperextension of the right hand which was noted by both Professor Bauze and Dr Ormandy to be a congenital problem is as a result of the accident.
[3] Pasvouris v Schmarr [2006] SADC 92 at [157].
However it is apparent that the accident and the plaintiff’s fall to the ground involved some minor damage to the right hand. The plaintiff complained of pain in the right hand. An investigation failed to reveal any particular damage. In this regard the trial Judge noted that the plaintiff needed to wear antihyper-extenders on the fingers of the right hand:[4]
The plaintiff complained of pain in the right hand. Dr Wallace said that an MRI scan was performed to investigate possible damage to the hand. That scan revealed no disruption of the tendons but indicated some possible soft tissue damage to the volar plate of the fingers. He was referred for physiotherapy and occupational therapy and was last seen in the Hand Clinic on 11 October by Dr Sandow. The plaintiff said for a period of time he wore antihyper-extenders on the fingers of the right hand. These antihyper-extenders were worn by the plaintiff for about a month after the plaster slab on the left wrist was removed.
[4] Pasvouris v Schmarr [2006] SADC 92 at [6].
Issues Arising on the Appeal
On appeal the plaintiff complained that the award for non-economic loss was inadequate. In making that award the trial Judge reasoned:[5]
This action is subject to the provisions of s35A of the Wrongs Act 1936 (SA) which, though now repealed, is applicable to the assessment in this case. The sum prescribed by the Act in relation to this claim is $1710. So, according to the severity of the injuries and the effect of them on the plaintiff’s life a numerical value of between 0 and 60 is to chosen [sic] and applied to the prescribed sum. For the reasons stated elsewhere I have concluded that the plaintiff has some ongoing pain and disability in the left wrist as a result of the accident. I do not accept that the other symptoms complained of by the plaintiff arise as a consequence of the accident on 22 March 2002 although I do accept that there may have been some temporary exacerbation of the ongoing cervical pain and headaches which the plaintiff had been experiencing since 26 September 1996. I do not accept that the symptoms of headaches and cervical pain now nor indeed the ongoing complaints of back pain after the accident are materially different from the ongoing symptoms that the plaintiff was experiencing prior to 22 March 2002. In my view an appropriate numerical value to apply to the prescribed sum is 8. So the allowance for past and future pain and suffering and loss of enjoyment of the amenities of life becomes $13,680. There is no interest to be added to this sum.
[5] Pasvouris v Schmarr [2006] SADC 92 at [163].
The plaintiff complained that this was too low an assessment for a serious left arm and hand injury. It was said that the plaintiff would suffer ongoing disability throughout his life.
It is to be recalled that the trial Judge accepted Dr Ormandy’s opinion that the plaintiff had suffered a permanent functional disability of the left lower arm of about 15%. The basis of Dr Ormandy’s opinion was outlined in his written report of January 2004. Dr Ormandy further reported in 2005 and 2006 in respect of the plaintiff’s injuries, but in those reports confirmed that the disabilities noted in the January 2004 report represented the ongoing and permanent position. Relevantly, Dr Ormandy reported:
CURRENT SYMPTOMS
His main problem is in his left arm and hand.
LEFT ARM
He still has some pain indicating the left forearm at the site of the operation for plating of the left ulna. It is worse when he uses his left arm particularly when attempting overhead activities such as lifting weights from people working in the gymnasium. His left arm pain is also worse in cold weather and at night.
LEFT WRIST
The pain is in the left wrist and in the ulnar side of his left hand and the fourth and fifth fingers of his left hand. The pain in his left hand and wrist is worse with use and with cold weather and at night. He occasionally has some tingling in this same area. Because of his left forearm and wrist problems he tends to use his dominant right hand more.
...
ON EXAMINATION
...
LEFT HAND AND WRIST
Flexion of the left wrist is reduced to 60 deg, as is extension. Ulnar deviation is also reduced to about half of the normal range. All of the fingers of the left hand show a similar though less degree of hyper-extension of the proximal interphalangeal joints with flexion of the distal interphalangeal joints, as does the right. Flexion and extension of all fingers of the left hand are full in range and the power of flexion and extension does seem to be normal. However the grip of the left hand is reduced by about 30 to 40% over the grip of the dominant right hand.
LEFT FOREARM
There is a 9 cm. oblique scar over the lower third of the ulna. There is a 3-cm. scar over the lateral aspect of the wrist. There was no decreased or increased sensitivity of the skin distal to these scars.
...
OPINION
This man sustained a significant injury to his left forearm and hand in the subject motor vehicle accident. He has required internal fixation by plate and screws and internal fixation of a fracture of the fifth metacarpal. He still has some pain associated with these injuries and the aftermath. It is now almost two years since the injury and I think that he will persist with symptoms of pain. He does have some restriction of movement of the left wrist as a result of the injury and this in turn has weakened the power of the grip with his left hand.
...
I would assess him as having ... a permanent 15% loss of the full and efficient use of his left upper limb below the left elbow as a result of combined injury to his left ulna and the metacarpal and phalanx of his left hand and the coincidental injury to his left wrist.
The trial Judge concluded that the plaintiff was severely handicapped for several months following his discharge from hospital. Both of his hands were substantially unusable during this period and as a result he had a need to rely on the assistance of his parents for most aspects of daily living. After three and a half months he returned to work on a part-time basis and after a further twelve months these hours increased to approximately half of his usual workload.
Some time later, he was able to resume full time work, however he was still unable to perform a number of tasks associated with his work. The plaintiff suffers ongoing pain in the area of the lower left arm and hand, particularly if he attempts movements that are difficult for him, or if he attempts heavy lifting. His disabilities as observed by Dr Ormandy are permanent and are likely to continue throughout his life.
The plaintiff sustained an injury to his back some years earlier. Following the accident in March 2002, the problems with his back and neck were exacerbated for a period of about twelve months. Thereafter the effects of the second accident came to an end and he returned to his pre-accident state.
As a result of the March 2002 accident, the trial Judge concluded that the plaintiff sustained a severe injury to his left lower arm and hand that caused disability both in function and performance as well as intermittent pain. The assessment of damage for pain and suffering as indicated in the Judge’s reasons was subject to a statutory scale. The Judge rated the plaintiff’s pain and suffering at the level of 8 out of 60. The learned Judge’s assessment in this respect was too low and outside the relevant range. As earlier observed, the plaintiff’s disability will continue throughout his life. It is also relevant that he has a congenital disability as well in his right hand. I would rate the plaintiff’s pain and suffering at the level of 10. I would assess the damages at $17,100 under this head.
Gratuitous Services
The plaintiff further complained that the award for gratuitous services was also inadequate. The trial Judge made the following findings relevant to this award:[6]
[6] Pasvouris v Schmarr [2006] SADC 92 at [175]-[177].
The plaintiff said that after his discharge from the hospital he was cared for at home by his father and his mother. For the first couple of months he was largely incapacitated as both of his hands were to some extent immobilised. He needed his father’s assistance to go to the toilet and to shower. His mother fed him and helped him dress during that period. Mrs Efstratia Pasvouris, the plaintiff’s mother confirmed in her evidence that she and her husband provided this sort of care for the plaintiff until towards the end of June 2002. In addition, Mr Pasvouris senior took the plaintiff to the hospital where he went from time to time for treatment at the hand clinic.
Mrs Pasvouris said that after the plaster was removed he got a bit better and started to drive his motor vehicle. It appears from the report of Dr Wallace that the plaintiff was last seen for physiotherapy or occupational therapy at the hand clinic on the 11October 2002. The plaintiff confirmed as much in his evidence that after that time he did his own form of therapy including swimming, hydrotherapy and massage at the gym.
I find that Mr and Mrs Pasvouris senior did provide those services to the plaintiff, at first after his discharge from hospital on an intensive basis but gradually as he got better their assistance tapered off. It is obvious from Mrs Pasvouris’ evidence that the plaintiff was driving his car again by about July, and it is obvious from the evidence of both the plaintiff and his brother, although the date is not precise that the plaintiff did go back to work, albeit for reduced hours in July 2002.
As a result of these findings, the Judge then concluded that the plaintiff was entitled to damages for this loss:[7]
I find that the plaintiff is entitled to damages for the gratuitous services provided by his parents during the period from 23 March 2002 until the beginning of July 2002.
I make that finding however against the background of the evidence of Mrs Pasvouris, which I accept, that she always performed the majority of household chores in that house in any event including the cooking, cleaning and the ironing.
...
The plaintiff presented a schedule of rates prepared by Homecare Service, ... for rates of pay to do with overnight and daytime nursing and other charge out rates for support workers performing personal services. I accept the defendant’s submission that to mathematically calculate the value of the services rendered by Mr and Mrs Pasvouris in this way would be entirely artificial. Doing the best I can and using those figures as a rough guide I award the sum of $3,500 inclusive of interest under this head of damages.
[7] Pasvouris v Schmarr [2006] SADC 92 at [178]-[179], [181].
Following the plaintiff’s discharge from hospital, he was substantially incapacitated as a result of both hands being generally immobilised. The level of assistance required in the earlier months was extensive and involved daily attendances by both of the plaintiff’s parents. Had it not been for their willingness to assist the plaintiff, other arrangements would have been necessary. An award of $3,500 inclusive of interest is in my view inadequate and manifestly so. It would only allow compensation for a modest level of assistance. The plaintiff’s needs were greater. Although precise calculations are not possible, it is evident that the plaintiff’s need for gratuitous services called for a materially greater award. I would award the sum of $8,000 inclusive of interest under this head.
The plaintiff also sought a claim for gratuitous services, in the event that he required an operation in the future to remove the plate from his left forearm. The evidence did not allow any conclusion to be reached as to if and when such an operation would take place and what if any gratuitous services would be required. At the time of any such operation, the plaintiff would not have the problems associated with the other injuries that he had following the accident. I would not make any allowance for future gratuitous services.
Future Loss of Earning Capacity
The remaining issue on appeal was with respect to the award for the plaintiff’s loss of earning capacity, both past and future. The trial Judge concluded:[8]
I find that the plaintiff did return to work part time three and a half months after the accident. At that time he was working about thirteen hours a week which he gradually over the next six to twelve months built up to eighteen to twenty hours a week. I do not accept that his working hours have been stable at that figure ever since. I find that the plaintiff is either working now thirty to thirty five hours a week, or if he is not, then his failure to complete a relatively normal working week is not due to the results of the accident on the 22March 2002. Moreover, I find that this has been the position since early 2004.
I find that the plaintiff is able to work full time, albeit that there are some activities which he should avoid, including fine work involving any precision movements of the hands.
I accept the evidence of both the plaintiff and his brother that a relatively small component of the plaintiff’s working week was involved with pool maintenance, the lifting of weights and other activities from which the plaintiff is either now somewhat restricted or completely unable to perform. I observe again that some of the disability that flows from the injury to the left wrist overlaps to some extent with the pre-existing disabilities from the earlier accident in particular the plaintiff’s preference for doing lighter work and avoiding any activities which require heavy lifting – such as carrying twenty litre containers of chlorine.
[8] Pasvouris v Schmarr [2006] SADC 92 at [159]-[161].

In this respect, the Judge reasoned:[9]
Any assessment of the plaintiff’s future loss of earning capacity must involve findings as to his current employment and the likelihood of that employment continuing. As the court pointed out in Husher (supra)
Deciding what value is to be ascribed to the loss of future earning capacity of an injured plaintiff requires close attention to the facts of each case. The task is not one to be undertaken by seeking to classify cases as concerning “sole traders” or “partnerships” or “wage-earners” or “trading trusts”, and then attempting to deduce some rule of general application to all cases falling within the classification thus devised. Rather the inquiry is about what could the plaintiff have done in the workforce but for the accident and what sum of money would the plaintiff had had at his or her disposal. Only when those inquiries are pursued can a judgment be made about what capital sum to allow as damages for the impairment of the plaintiff’s earning capacity. In doing so, regard must be had, of course, to all those contingencies of life that might reasonably be expected to affect the course of events in the future.
I bear in mind that when assessing this head of damages I must take into account all contingencies both positive and negative which might arise hereafter.
[9] Pasvouris v Schmarr [2006] SADC 92 at [168], [169].
Her Honour then turned to consider the likelihood that the plaintiff would continue with his brother in the gymnasium business:[10]
Although Mr Eric Pasvouris claimed that his brother had not been pulling his weight since the accident in 2002 and that he was sometime after the date he gave evidence in February 2006 resolved to have a serious discussion with his brother about whether the two would continue together operating the gym I find that the fact that by May of 2006 the new lease had been signed by the brother is evidence enough of the fact that the two brothers do intend to continue in partnership together. I do not accept that there is any real risk that the two brothers will not continue to work together in the gym business, subject of course to the normal exigencies in obtaining council approval for the new venture.
...
The plaintiff’s employment history since leaving school has been almost exclusively within the context of the businesses of family friends or family businesses with his brother. If for any reason the plaintiff finds himself on the open labour market in years to come then by reason of his ongoing impairment arising from this accident and having regard to his educational history and working background I do find that he will be at some disadvantage on the open labour market. Some modest allowance is therefore justified under this heading being the value of the chance that the plaintiff’s wrist disability will impact on his capacity to earn in the future. In my view only a modest allowance is indicated on the evidence before me. The present value of this loss I assess at $25,000. This heading of loss attracts no interest.
[10] Pasvouris v Schmarr [2006] SADC 92 at [171], [173].
The trial Judge’s earlier findings concerning the plaintiff’s difficulties at work were not challenged. The Judge concluded that the plaintiff did have an ongoing loss of earning capacity. There were aspects of gymnasium work that were beyond his capabilities. These included the heavier and more awkward aspects of pool maintenance and general maintenance required for the spa and sauna. He was unable to change lights. Aspects of plumbing caused difficulty. Heavy lifting caused ongoing problems. The plaintiff was unable to attend to fine work involving precision movements in the hand. The knocking of the lower left arm or hand caused pain. As earlier observed he has a congenital disability in the right hand.
It is to be borne in mind that these problems are evident whilst the plaintiff is in his late twenties and early thirties. They represent serious disabilities in a young man with no particular training. If the need to compete on the labour market arises, he will be disadvantaged on that market.
The plaintiff was entitled to an award substantially in excess of the $25,000 allowed by the trial Judge. By its very nature, this head of damage involves a matter of general assessment and judgment. However, bearing in mind that the plaintiff will suffer this loss of earning capacity throughout his working life, his injuries and disabilities call for an award of $50,000 under this head of loss.
Conclusion
I would allow the appeal, set aside the award of the trial Judge and substitute an award of $84,565 made up as follows:
non-economic loss   $ 17,100.00
past loss of earning capacity (including interest)            $ 6,465.00
future medical expenses  $ 3,000.00
future loss of earning capacity  $ 50,000.00
gratuitous services (including interest)  $ 8,000.00
Total  $84,565.00
I would enter judgment for the plaintiff in the sum of $84,565.00 which sum includes interest. I would hear the parties as to costs.
DAVID J. I agree with the reasons of Gray J. I also agree with the orders he has proposed.