PRENTERGAST v BULNER - [2005] SASC 426

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)
PRENTERGAST v BULNER
Judgment of The Full Court
(The Honourable Justice Duggan, The Honourable Justice Bleby and The Honourable Justice Anderson)
17 November 2005
DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES - LOSS OF EARNINGS AND EARNING CAPACITY
Appeal against decision of District Court judge awarding damages for personal injury - appeal against assessment of damages in relation to loss of earning capacity, liability having been conceded - whether trial judge erred in finding that the respondent was not fit for work at the time of the trial - whether the amounts awarded for past and future loss of earning capacity were manifestly excessive - whether the trial judge gave insufficient allowance for the possibility that the respondent may have elected to abandon her work to care for her children - notice of alternative contention filed by respondent - whether the trial judge erred in allocating only 15 points on the scale for the respondent's injuries - whether amount awarded for gratuitous services too low - Held: no error demonstrated on the part of the trial judge - no interference with award for either past or future loss of earning capacity - no increase warranted - global amount awarded represents proper compensation - appeal dismissed.
Civil Liability Act 1936, referred to.

PRENTERGAST v BULNER
[2005] SASC 426
Full Court: Duggan, Bleby & Anderson JJ

DUGGAN J In my view the appeal should be dismissed for the reasons given by Anderson J.
BLEBY J I agree that the appeal should be dismissed for the reasons given by Anderson J. I have nothing to add to those reasons.
ANDERSON J This is an appeal from an assessment of damages made by a judge of the District Court on 1 June 2005. The assessment of damages was to compensate the respondent for injuries and loss which she sustained as a result of a road accident on 19 September 1999.
The circumstances of the accident were not in dispute, and the appellant admitted liability. The matter proceeded before the learned trial judge solely as an assessment of damages.
The appeal to this court relates only to that part of the assessment by the learned trial judge of the amounts allowed for loss of earning capacity both as to the past and in relation to the future. The respondent has filed a notice of alternative contention relating to the amounts awarded for non-economic loss and also for gratuitous services. It is convenient to summarise the background facts by adopting the reasons of the trial judge which were not disputed. The trial judge said at [3] – [5]:
The plaintiff is an aboriginal woman who was born on 10 March 1965. She was born in Woodville, but has lived in the south eastern part of the State since she was aged 4. She was educated to Year 11 standard. She has worked as a sewing machine operator, cleaner and aboriginal health worker. At the time of the accident, she was employed by the Southeast Regional Health Service Incorporated as an aboriginal aged care co-ordinator.
The role of the plaintiff as an aboriginal aged care co-ordinator was to develop, implement and evaluate strategies and programs to meet the community service needs of the frail, aged and younger disabled members of the aboriginal community in the south eastern part of the State. Her work required her to travel extensively throughout the area, spending a substantial part of her time driving a motor vehicle. From her base in Mount Gambier, she would travel as far as Bordertown, Kingston and Naracoorte. She visited people in their homes. Some of her clients, because of physical disabilities, required her to assist them manually in movement; she bearing some of their weight for that purpose. She would collect clients from their homes, take them to their appointments with the various health practitioners and act as advocate for them. She also took them on community activities. Every three months, she conducted an audit of all her clients.
The role of an aboriginal aged care co-ordinator or worker is a sensitive one; different from that of a person holding a similar position in the mainstream health system. Aboriginal people are reluctant to go to mainstream health services and the plaintiff’s clients required her support and encouragement for that purpose. For her part, the plaintiff valued her contact with her clients, particularly the elders. Her work had a significant, emotional impact on her.
At the time of the accident the respondent was aged 35 years and had two children then aged 11 and nine. They are now aged 16 and 14. The eldest is in his matriculation year at school.
In the accident the plaintiff sustained a fracture to her right foot to the calcaneum or heel bone. The foot became very swollen and painful so that she could not stand on it. She underwent surgery and the fracture was fixed by open reduction and internal fixation. Following her discharge from hospital, the plaintiff’s right leg was in plaster and she was then required to use crutches during the time she was away from work. This was for a period of about three months.
I take up the summary of events involving the plaintiff’s return to work and the difficulties she has faced by again using the reasons of the learned trial judge. He said at [12] – [19]:
The plaintiff returned to work on light duties on 16 February 2000. She worked 4 hours per day. She worked in and about Mount Gambier. Her duties were mostly clerical and did not involve any driving. She returned to full-time work on 18 April 2000.
The plaintiff had difficulty in performing the full range of her duties; largely due to the time she was required to be on her feet and driving. She had pain in her foot: in the arch and the base of the heel. Her foot would ache while she was driving and, after she had been driving, would be stiff and sore. Walking on uneven ground increased the pain. She noticed this particularly when visiting her clients. She had problems in taking the weight of her clients as she assisted them in moving about because she was unsteady on her feet. She had trouble walking on slippery steps and slopes.
The plaintiff continued to perform her full range of duties, but, because of the difficulties she was experiencing, returned to part-time work in about February 2001; working two and half days per week. She had developed marked degenerative changes in the sub-talar joint as a result of her injury.
The plaintiff continued to see Mr Drakopoulos and, on 21 January 2002, she underwent further surgery. She had a fusion of her right sub-talar joint and the plate and screws, which had been inserted at the original surgery, were removed from the calcaneum. Her husband took two weeks off work at the time of the surgery to look after her.
After the operation in January 2002, the plaintiff was off work until 2 September 2002, when she returned to work on a part-time basis: she worked about half-time. She had difficulty coping: her foot continued to give her trouble. On 10 February 2003, she took leave of absence. Her employer arranged for her to be medically assessed. As a result of that assessment, her employment was terminated on 25 August 2003. It was terminated because she was no longer able to continue with her work as a result of the pain and disabilities she was experiencing in her foot.
The plaintiff continues to have trouble with her foot. Prolonged standing, over 20 minutes, causes pain on the outer side of the heel and under the heel, and the foot swells. She takes her weight on her left foot as much as she can and she sits to do her work whenever possible. She elevates her foot at various times during the day; for about 4 hours in all. She sleeps with her foot resting on a pillow. She takes medication to assist her with her sleep. She gets cramp in her toes at night. Weight bearing causes an increase in her symptoms. She avoids carrying things of any significant weight; for example, she does not carry the washing to the line. She is unable to walk for any longer than 20 minutes, when she is forced to stop because of the pain in her foot. Walking on uneven ground increases her pain. She has difficulty in walking on slopes and climbing stairs. Sitting for prolonged periods causes aching in her calf and foot, alleviated by her moving about. She has an almost constant ache in her foot, exacerbated by the activities I have just mentioned. She has marked reduction of movement in her foot and ankle as a result of the sub-talar fusion. Dorsi-flexion is full, but there is a loss of 10-15 degrees of plantar-flexion. There is hardly any sideways movement.
The plaintiff takes panadiene forte on prescription for the relief of her pain. She takes it as required; one tablet three to four times per week. A packet lasts her for about four weeks.
The plaintiff does most of the work around the house, at her own pace, getting some assistance from her husband and children; for example, sometimes, her husband does the vacuuming.
It appears that during the trial a further medical examination was carried out by Mr Drakopoulos, the surgeon who had originally treated the respondent. The foot had continued to give her trouble, and as a result a bone scan was arranged and performed on 10 February 2005. The scan showed that the fusion originally performed had not completely succeeded and that this was the likely cause of the plaintiff’s continuing symptoms. It was the opinion of Mr Drakopoulos that the symptoms at the time of the trial were in fact worse than when he had last seen the respondent in 2002.
It was Mr Drakopoulos’ opinion that further surgery was desirable, and he told the court that he was confident that if such surgery was performed it would likely reduce the level of the plaintiff’s disabilities. The surgery however would involve her having her leg in plaster again for about three months, and he estimated it would take her about a year to recover fully from that surgery. He estimated the cost of such surgery as between $12,000 and $15,000. At the time of the trial the respondent had not proceeded with the surgery.
Apart from the physical injuries sustained, the respondent developed a major reactive depression following the accident. Again, I use the words of the learned trial judge because his description is not in dispute. He said at [24] – [25]:
As a result of her injury and its consequences, the plaintiff has suffered, and continues to suffer, from a major reactive depression. She has received, and continues to receive, psychiatric and psychological treatment, including the taking of medication and therapeutic counselling. Her depression is directly related to her injuries, the physical disabilities and pain with which she has been left as a result and the resultant loss of her employment. Her depression manifests itself in depressed mood, loss of self-esteem, irritability, sleep disturbance, impaired concentration and suicidal thoughts. At the commencement of the trial, she was having counselling sessions with a psychologist every three weeks. Initially, commencing in March 2004, she saw the psychologist weekly. The medication she takes is an anti-depressant, Cipiramil. She takes two per day, a packet lasting about two months. She also takes a sleeping tablet Atovan. A packet lasts a month or so.
Following the giving of her evidence, and during the course of the trial, the plaintiff made a serious attempt at suicide: it related to the stress of giving evidence and the way in which she perceived herself as having been treated in the witness box. This episode was a significant setback in her mental state. Her mood had been improving with the treatment she had been receiving, but deteriorated rapidly and to a serious extent under the extra pressure. She is likely to require more frequent consultations with the psychologist and general medical practitioner over the next few months. It is likely that she will need to continue with her medication for the next 12 months or so.
The learned trial judge found that the plaintiff was not fit for work at the time of the trial, being work which involved:
… prolonged standing, walking, sitting or driving, walking on uneven ground, walking on slopes, climbing stairs or ladders and weight-bearing.
His Honour found that the respondent was fit only for sedentary work where she had the choice of standing, sitting and moving about at her leisure. The appellant does not accept these findings and I will deal with that aspect shortly.
In relation to the combination of the injuries, his Honour found as follows at [30]:
The plaintiff’s present disabilities for work have a physical basis. Superimposed on that physical basis is her depression; a factor which, by itself, would reduce her to ability to work; but, as I have indicated, the psychiatrists who gave evidence consider that, with the passage of time, her depression will abate; so that, by itself, it would not significantly limit her ability to work.
In what I have recounted so far by reference to the reasons of the learned trial judge, the appellant did not contest those findings save for her ability to do some form of work. His Honour found in addition that it was likely that the respondent would have continued her work as an Aboriginal Aged Care Worker or some such similar work indefinitely. Actuarial figures were provided to the trial judge which showed that the present value of a payment of $1 per week at a discount of 5% per annum payable to the plaintiff to age 65 was $740.
His Honour made a finding which is disputed by the appellant. His Honour found at [36] that:
It will be difficult for the plaintiff to find work for which she is fit. Such work is not readily available and competition for that which is available is high; and the availability of such work in the area in which the plaintiff lives might not be as much as, say, in the metropolitan area. She would need to find a sympathetic employer.
Figures for the plaintiff’s gross and net salary for the relevant years since her accident up to the time of trial were provided to the court. Those figures compared the net salary she actually earned with what she would have received had she been fully employed throughout that period.
Mr Walsh QC for the appellant submitted that the amount allowed for the plaintiff’s past loss of earning capacity, namely, $115,000 was manifestly excessive. That was against a total of $127,000 had she worked through the period, including a loss of superannuation entitlements.
The main basis on which Mr Walsh suggested that there should be a larger reduction that than allowed for by his Honour was the fact that there was some evidence to show that there had been some disturbances and disagreement in the workplace involving the respondent. There was evidence, however, from the respondent herself and from her supervisor which tended to water down the overall significance of any such tension, therefore making the possibility of the respondent leaving her employment earlier in any event, somewhat unlikely. Furthermore there was no evidence that the quality of her work was diminished in any way.
It is my view that having regard to that evidence, and having regard to the actual discount which the learned judge made, the amount which he awarded for past economic loss is a reasonable figure and represents an appropriate amount to compensate the plaintiff. The trial judge clearly formed a favourable impression of the respondent and her attempts to continue working with her disability.
The same aspect was relied on by Mr Walsh for his submission that the amount awarded for future economic loss, namely, $445,000 was again manifestly excessive. The same comments apply in relation to the future contingencies as set out above. The learned trial judge was entitled to take his assessment of the respondent’s character and desire to continue to work into account. In addition, Mr Walsh argued that the respondent was in fact capable of performing a considerable amount of work, and that the trial judge’s finding that it would be difficult for her to find any work, and that in particular she would need to find a sympathetic employer, was not justified on the evidence.
It must be remembered that the respondent not only sustained a very disabling injury to her foot, but suffered from a severe depression. In my view, the findings of the learned trial judge in his assessment of her ability to work in the future were quite justified on the whole of the evidence.
As part of his overall submission in relation to the amount allowed for the future, Mr Walsh submitted that there was also insufficient allowance for the possibility that the respondent may have elected to abandon her work even if there had not been an accident because she may have wanted to care for her children in their later years at school. There is no evidence to support that submission. The respondent had taken time out to look after her children at an earlier point of time when they were quite young, but in my view, there is no warrant for saying a discount should have been applied for that aspect in the future.
A strict actuarial calculation applying the relevant multiplier to the current net wage the respondent would be earning results in a capitalised figure of $539,000. The present value of the loss of superannuation contributions was calculated at $61,000. As was pointed out by Mr Trim QC for the respondent, the trial judge’s assessment of future economic loss represents a reduction of approximately 25% on the strict arithmetic calculation of those losses.
I refer again to the findings which I have set out earlier in these reasons regarding the learned judge’s assessment of the respondent’s ability to work in the future. In my opinion, all of those findings are justified on the evidence, and accordingly the amount awarded, when one considers that it does involve a 25% reduction for relevant contingencies, is appropriate. I would not interfere with the assessment for future economic loss.
There was also a notice of alternative contention filed by the respondent, which contended that the judgment should be upheld for the reasons given by the trial judge and, in the alternative upon two additional grounds, as follows:
1.That His Honour’s assessment of damages for non economic loss was manifestly inadequate.
2.That His Honour’s assessment of damages for past and future gratuitous services was manifestly inadequate.
The learned trial judge had allowed 15 points on the appropriate scale pursuant to s 52 of the Civil Liability Act 1936 out of a total score of 60 points. The details of the injuries have already been set out, and it is my view that an allocation of 15 points represents an assessment at the low end of a range which would be appropriate. I do not think however that any increase is warranted, having regard to the fact that in my view 15 points on the scale does fall within a range which could be expected, albeit at the low end of the range.
The respondent also contends that the amount awarded for gratuitous services past and future, namely, $10,000, is insufficient in all the circumstances. Mr Trim submitted, and I agree, that on the face of it, it does appear to be a very moderate award. However, there was a paucity of evidence on the topic.
The amount awarded is moderate. It may even be on the low side, and I suspect it probably is but I share the learned trial judge’s difficulty in being able to assess that aspect on the limited material provided to him.

In the case of both the award for non-economic loss and for gratuitous services I would not have increased the amounts even if the appellant had succeeded in having the amount of the judgment reduced.
In any event I consider that the global amount awarded represents a fair amount for the injuries sustained by the respondent and their sequelae.
In the overall result therefore I would dismiss the appeal.