Patrick James Morrison v State Government Insurance Commission No. SCGRG 91/1667 Judgment No. 3930 Number of Pages 8 Damages
[1993] SASC 3930
•13 May 1993
COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA MOHR(1), BOLLEN(2) AND MILLHOUSE(1) JJ
CWDS
Damages - Injury in a road accident - fractures to pelvis and ilium - appellant/plaintiff capable of working at his pre-accident employment - risk of unemployment if retrenched - possibility of future surgery - assessment of trial Judge upheld - Wrongs Act 1936 (SA) s35a(4).
HRNG ADELAIDE, 13 April 1993 #DATE 13:5:1993
Counsel for appellant: Mr R Halliday
Solicitors for appellant: Wallmans
Counsel for respondent: Mr R W Evans
Solicitors for respondent: Ross and Mccarthy
ORDER
Appeal dismissed.
JUDGE1 BOLLEN J This is an appeal against the amount of damages awarded to a plaintiff. It is said that two components of the award are manifestly inadequate and, there being no dispute about the amount awarded for the other component, that the whole assessment is manifestly inadequate. 2. The appellant was injured in a road accident which happened on 13th February 1988. At that time he was 16 years of age. 3. The appellant was a passenger in a vehicle driven by a young man named Lissner. Each was intoxicated. Lissner drove into the rear of a stationary vehicle. The defendant (respondent) raised pleas of voluntary assumption of risk and contributory negligence. This case reveals what appears to have been an oversight by the draftsman in subsection (4) of s35a of the Wrongs Act. The learned trial Judge (Judge Lee) said:-
"Sub-section (4) of section 35a of the Wrongs Act 1936
abolishes the defence of volenti non fit injuria in
cases where a presumption of contributory negligence
arises under sub-section (1)(j) of the section.
Sub-section (1)(j) creates a presumption of contributory
negligence in cases where the driver is impaired by
alcohol and the injured person (not being a minor) is a
voluntary passenger and is aware or ought to have been
aware of the impairment. Doubtless due to an oversight
by the draftsman, the qualifying words "not being a
minor" deny to a minor the benefit of sub-section (4).
The plaintiff was a minor at the time of the accident.
This means that the defendant's plea of volenti non fit
injuria remains one of the issues for determination." 4. I think that this Court should draw the attention of the Attorney- General to the oversight. 5. The learned trial Judge rejected the plea of voluntary assumption of risk. But he found that the "decision" of the appellant to get into the vehicle which was to be driven by an intoxicated man amounted to a failure to take proper care for his own safety. On the score of contributory negligence he reduced the damages by 20%. 6. I can best speak of the injuries and their effect on the appellant by quoting a large passage from the very thorough reasons of the learned trial Judge. His Honour said:-
"The plaintiff is now 20 years of age. After leaving
school in August, 1987 in year 11, he joined Weldrite
Pty. Ltd., metal fabricators and welders, as a trades
assistant. From 4th January, 1988 he began a four year
apprenticeship as a welder and structural steel worker.
His duties as a trades assistant included drilling,
grinding, preparing steel, welding, and measuring,
marking out and cutting steel.
On his admission to the Queen Elizabeth Hospital
following the accident, the plaintiff was found to have
sustained bruising of his bladder and fractures of his
pelvis involving the superior and inferior pubic rami on
both sides. There was also a fracture through the ilium
adjacent to the left sacro-iliac joint. The insertion
of a pin in the left upper tibia to apply traction did
not have the desired effect. Mr. Lloyd Coats,
orthopaedic surgeon, then performed internal and
external fixation of the fractures with pins and an
external frame. The external frame was fixed to the
pins in the shape of an A.
The plaintiff made satisfactory progress following those
procedures, and was discharged on 9th March, 1988. He
was followed up at the outpatient's department, and the
frame and pins were removed on 8th April, 1988.
During the one month period between his discharge and
the removal of the frame and pins, the plaintiff
convalesced at home in the care of his mother. She
helped to dry him after his shower (for about two weeks)
and to dress him. She bathed the area where the pins
were and applied Betadine about three times a day. She
drove him to and from the hospital. She then kept a
motherly eye on him after the frame and pins had been
removed.
The plaintiff returned to work on light duties, mainly
drilling, on 6th June, 1988. He felt a fair bit of back
pain. Some days he went home early. He was admitted to
hospital on 18th September, 1988 for removal of a plate
and screws from his back. He was discharged four days
later but re-admitted the next day for a further three
days with a swelling and accumulation of fluid in the
wound. He made a number of follow-up visits to the
outpatients department. He went back to light duties on
10th October, 1988 and remained on light duties until
about the end of 1988.
At the beginning of 1989 the plaintiff found he still
had difficulty welding low down and whilst squatting and
crouching, especially in confined spaces such as tanks.
He also had difficulty standing and bending over for a
long time, and welding overhead. His pain was in the
general area of the bottom of his spine on the left-hand
side. He continued to improve until about mid-1989 but
there has been no change since then. He still
experiences pain on doing the things mentioned earlier
in this paragraph. He also experiences pain if he
carries heavy objects for a long distance in the
factory.
Although the plaintiff has completed his formal
qualifications at trade school, he is not due to finish
his apprenticeship until January, 1992. He has remained
in the workshop but is now performing a full range of
duties. He has not been given site work because of the
need to bend, climb ladders and work from platforms.
The company has ten employees including two apprentices.
The other apprentice does site work. The remaining
employees are boiler-maker/welders. In a typical year,
more work is done in the workshop than on site. Next
year the company would expect the plaintiff to do site
work. But it would not force the plaintiff to do site
work. There is always work in the workshop. If he
remains unable to do site work, he would be vulnerable
to retrenchment in poor economic times. However, the
company looks upon him as a conscientious and competent
worker and would not want to lose him.
Before the accident, the plaintiff's main recreations
were football and trail-bike riding. He played a full
season of football in 1986 and 1987. He went trail-bike
riding once a week. He has not returned to either since
the accident for fear of further injuring his pelvis.
The plaintiff can run over 30 to 50 metres, but
experiences pain on the left-hand side of his back where
the plates were. He is left with surgical scars, two at
the front on either side and one much longer on the left
side of the lower back. Although the scars are obvious
and disfiguring, the plaintiff did not say that he is
embarrassed by them. He has had no physiotherapy,
medication or other treatment since 1988.
Mr. Coats expresses the view that the sacro-iliac joint
was damaged and that a fusion of that joint would need
to be considered if the plaintiff's sacro-iliac pain
becomes intractable. He says that the chance of a
fusion is less than 50%, and he would not recommend it
now or in the near future. A fusion would probably
require two to two and a half weeks in hospital and
three to four months away from his normal duties. Fees
for the surgery would be in the order of $1,000.00 on
present rates. If the plaintiff does have a fusion, his
capacity for work as a boiler-maker welder would be
improved rather than reduced. Mr. Coats is 95% certain
that the plaintiff would become pain free." 7. His Honour then referred to views of other surgeons. He went on -
"Mr. Coats assesses loss of total body function at 10%
and loss of overall working capacity at 15%. Mr. Coats
considers that the plaintiff will probably be able to
perform his present work as a boiler-maker welder until
normal retirement age, although he would be sensible to
avoid more than a minimum amount of work in confined
spaces. Mr. Coats describes the plaintiff as "an
extraordinarily uncomplaining person". 8. The views of Mr. Coats arise from a long association between patient and treating surgeon, they were given cogently and dispassionately, they sit comfortably with the evidence as a whole, and I am content to accept them for the purposes of the assessment. 9. The plaintiff is entitled to be compensated for future loss of earning capacity upon the footing that his residual disability imposes permanent restrictions upon the work that he can perform as a boiler-maker/welder. I refer in particular to the difficulty he will experience whilst squatting or crouching in confined spaces. It is unlikely that the restrictions will cause in the short-term future an actual loss of income if he remains in his employment. It is also unlikely that the restrictions will lead in the short-term future to dismissal or retrenchment from his present employment. But what of the medium and long term? The plaintiff is young and has a long working life ahead of him. His chosen career of boiler-maker/welder would be placed at significant risk if he were to be thrown onto the general labour market. Fortunately, he seems to be industrious, competent and well motivated. Doubtless he will make the most of his future employment opportunities. I allow the sum of $15,000.00 under this head. 10. The possibility that the plaintiff will require fusion of his sacro-iliac joint in the medium or long-term future calls for an allowance for medical and hospital expenses and loss of income during surgery and convalescence. On the evidence overall I do not rate the chance of fusion at any higher than 20%. I allow the sum of $1,300.00 under this head." 11. His Honour spoke of other components of the award. He assessed damages in all thus -
"loss of earning capacity
past $2,458.00
future $15,000.00
gratuitous services $500.00
other economic loss associated with fusion - $1,300.00
non-economic loss $12,840.00
special damages $10,712.00
$42,810.00 " 12. He reduced damages by 20%. He entered judgment for the appellant in the sum of $34,248. 13. I do not set out the grounds of appeal. Some are not happily expressed. But Mr Halliday, for the appellant, made the complaints of and the arguments for the appellant perfectly clear. The appellant complains only of the amount awarded for future economic loss and for "future medical and hospital expense" which includes loss of income during time in hospital and during convalescence. There is a ground of appeal touching "costs". I will come to that. 14. The award of $15,000 for future loss of earning capacity is not a large award. Mr Evans, for the respondent, put the case for the respondent very neatly thus: "It is the respondent's case that the award was very low, but not wrong". 15. Of course, the appellant in his appeal engages to show this Court that the award was manifestly inadequate. 16. Again, I can best speak of something by quoting. In relation to the allowance for future loss of capacity to earn Mr Halliday wrote in his Outline:-
"1. The assessment of the plaintiff's entitlement to
an award of $15,000.00 for future economic loss is
inadequate based on the findings appearing at page 378
and 379 of the Appeal Books in that:
(i) Notwithstanding that he has had a sympathetic
employer sheltered him from heavier and 'on site work'
his incapacity restricts him from doing heavy work
including bending down and working in confined spaces
and he faces the prospect of heavier site work in the
future as he gains experience.
(ii) If by reason of his disabilities or for some other
reason retrenchment of staff is necessary with his
present employer he would be 'one of the first to go'
(177) notwithstanding the employer's contention that 'we
wouldn't want to lose him'.
(iii) The plaintiff's disability although static at the
time of trial will not improve and will either remain
static or get worse.
(iv) That the plaintiff although young is dependent on
his physical skills and capacity to maintain work.
(v) He is restricted in his capacity to exercise a
choice of employment.
(vi) He is at a disadvantage in competition with others
for jobs.
(vii) The plaintiff has had his ability to perform heavy
work skimmed off his capacity permanently and the range
of employment options are limited.
(viii) Bearing in mind his age and the undoubted fact
that the plaintiff has a long working life ahead of him
there is a greater period of time in which he must
endeavour to maintain employment notwithstanding his
disability.
In all of the circumstances it is submitted that the sum
of $15,000.00 for future economic loss is manifestly
inadequate as a matter of principle." 17. These submissions, to which Mr Halliday spoke with force, clearly put the case for the appellant about future loss of earning capacity. They and Mr Halliday's oral submissions certainly established that the allowance was "low". Perhaps that is particularly so if the risk of unemployment if retrenched by the present employer is remembered. The learned trial Judge had all points now raised by the appellant much in mind. He recognised the difficulty of working in some positions and the risk inherent in retrenchment. But over and above all this there is the real likelihood that the appellant will always have employment. In fact I think we can go so far as to say that that is the probability. Mr Coats (whose evidence was accepted) spoke of a "loss of overall working capacity" of 15%. But as the learned trial Judge found "Mr Coats considers that the appellant will probably be able to perform his present work as a boiler-maker welder until normal retirement age, although he would be sensible to avoid more than a minimum amount of work in confined spaces". Not that he cannot work in confined spaces but that he should do so as little as possible. To that we add that the appellant has a trade now. To that we add that he is a conscientious and competent worker. The risk of his being out of work by reason of his injury (from which he has recovered well) is, in my opinion, slight. I cannot think that the award of $15,000 is out of proportion to the minor restriction which he has and to the slight risk of unemployment. The appellant has really lost no capacity to work as a boiler-maker welder. He needs compensation against the risk of unemployment if he is retrenched and if a new employer will not engage him because he has been injured or because he has slight restriction. In my opinion, the allowance of $15,000 for future economic loss is not manifestly inadequate. I can see no fault in the reasoning of the learned trial Judge. 18. The learned trial Judge allowed $1,300 for future medical and surgical expenses and their concomita. It must be remembered that the idea of a fusion at the sacro-iliac joint is really only an idea. Mr Coats said that the change of the necessity to do it is less than 50%. If it becomes necessary it will not be so in the near future. If it is done it will be likely to improve the capacity of the appellant to perform his work at his trade. It would probably make him free of pain. Just as unemployment will probably never happen so I think it probable that the fusion will never be done. But there is the possibility that it will be done. The learned trial Judge was entitled to fix the possibility at no higher than 20%. From there he was entitled to fix an allowance by way of assessment. He had very little evidence before him on this score. Moreover, no-one could possibly estimate the cost of surgery and stay in hospital in (say) thirty years' time. The allowance of $1,300 is not generous but it is not manifestly inadequate. After all the allowance is not now to be spent. It is a sum of money to be invested against future expenses. It will not earn much per annum but the long passage of years before the sum and its proceeds is needed (if ever) should enable a useful amount towards surgical and other expenses to accumulate. 19. I would dismiss the appeal against the assessment of damage. 20. The learned trial Judge entered judgment without having been told that the respondent had in advance paid out special damages amounting to $8,572. Later the learned trial Judge heard argument about this and about costs. The deduction of the sum of $8,572 from the award would have produced an award less than the amount mentioned in a "filed offer". In a supplementary "Reasons for Judgment" the learned trial Judge said:-
"Counsel for the defendant submits that the paid special
damages should be deducted from the judgment sum before
a comparison with the offer is made for the purposes of
rule 83A(8)(a). The relevant figures are as follows:-
judgment and interest $34,888.00 paid special damages
$8,572.00 difference $26,316.00 filed offer $32,525.60
Rule 83A(8)(a) begins with the words: 'Unless for
special reasons the Court thinks proper to order
otherwise, where in respect of any cause of action a
plaintiff recovers judgment for a sum of money which is
the same or less than the amount of an offer to consent
to judgment in respect of that cause of action, the
Court shall order....' Having considered the underlined
words in the context of the provisions of Part VIII of
the Local and District Criminal Courts Act 1926 relating
to the enforcement of judgments and orders, I am of the
opinion that I should have entered judgment against the
defendant for the sum which the plaintiff is entitled to
enforce by execution. That sum is $26,316, representing
the assessment of damages after apportionment plus
interest less paid special damages. Judgment for
$26,316 would entitle the defendant to an order under
Rule 83A(8)(a) unless special reasons are shown." 21. Later still His Honour made the following order:-
"I refer to reasons for decision which I gave on
11/10/91 in response to the pltff's application for an
order for costs against the deft. In those reasons I
said that I would be prepared to amend the amount of the
judgment if the deft. can persuade me that I have power
to do so. In my view the power to amend the judgment in
the particular circumstances set forth in my reasons of
11/10/91 resides either in the inherent power of the
court to set aside irregular judgments (see Champion v
Fay (1983) 2 Qdr R 416 at 417) or in the Supreme Court
Slip Rule (Rule 53.10(1) imported into the rules of this
court by Rule 310 of the Local Court Rules). I amend
the judgment which I entered on 5/7/91 accordingly. In
the result there will be judgment for the pltff against
the deft. for the sum of $26,316.00. There will be an
order purs. to Rule 83A 8(a) as follows:-
1. That the pltff. recover against the Deft. the
pltff's costs of action up to 20/11/90 together with the
costs that the plaintiff would have incurred in
conferring with and instructing his solicitor upon the
offer filing and serving a notice of accept. and of
signing judgment w/in 14 days of 20/11/90.
2. That the deft. recover against the pltff. the deft's
costs incurred after 4/12/90.
3. That all costs taxed if not agreed." 22. The Notice of Appeal complains of this order. But Mr Halliday did not press the complaint. I say no more than that the Judge was right. 23. I would dismiss the whole appeal.
JUDGE2 MOHR J I agree with Bollen J in this matter.
JUDGE3 MILLHOUSE J I agree.
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