Robert Holton v Owen Edwards No. SCGRG 95/769 Judgment No. 5272 Number of Pages 5 Damages

[1995] SASC 5272

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA MILLHOUSE J

CWDS
Damages - measure and remoteness of damages in actions for tort measure of damages personal injuries - Appeal from Magistrate's decision allowing damages for personal injury: awards of $20,000.00 for future loss of earning capacity and of $210.00 for past loss of earnings. Assessment of future loss is a matter of impression - nothing to suggest award for loss of earning capacity manifestly excessive. 'Loss of earning capacity' in context of s35A(1)(d) of the Wrongs Act 1986 takes its meaning from the preceding words 'incapacitated for work': that a person may suffer an incapacity from time of accident not relevant to payment of damages unless he were actually away from work for more than a week. Wrongs Act 1986 35A(1)(d), referred to. Hinton v Mill (1991) 162 LSJS 440; Skurray v Jones and O'Callaghan (1993) 173 LSJS 440, applied. Medlin v SGIC (1995)127 ALR 180, discussed.

HRNG ADELAIDE, 16 August 1995 #DATE 12:10:1995 #ADD 27:11:1995

Counsel for appellant:     Mr B Krupka

Solicitors for appellant:    Finlaysons

Counsel for respondent:     Mr J Costello

Solicitors for respondent: Corsers

ORDER
Appeal allowed

JUDGE1 MILLHOUSE J This is an appeal from an assessment of damages by Mr Clynton Johansen SM. The respondent had been injured on 4 March 1993 in a chain collision on the Unley Road. He was driving a motor car but there was no question of his being at all liable.

2. At first it looked like a minor injury to his back but the problem persisted. The learned special Magistrate made a total award of $33,872.20. Of that the appellant, defendant in the Magistrates Court, complains of the assessments of $210.00 for past loss of wages and of $20,000 for future loss of earning capacity.

3. As to the former, the learned Magistrate said:-
    " I understand from the plaintiff's evidence that apart
    from the one day that he was absent from work following the
    conference in June 1993, he was absent from work for a
    further two days on the occasion that he underwent the
    spinal manipulation carried out by Mr Hillier. ... There is
    no evidence of what amounts were paid to the plaintiff for
    that three day absence. As best I can determine from the
    plaintiff's income tax assessments, his earnings during 1993
    approximated $100 per day. That is a gross figure. I allow
    $70 per day as a net figure. Hence, the plaintiff's past
    loss of earnings are in the amount of $210."

4. The appellant, relying on s35A(1)(d) of the Wrongs Act has argued that the respondent is not entitled to anything. The placitum is:-
    "(d) if the injured person was incapacitated for work, no
    damages shall be awarded for loss of earning capacity in
    respect of the first week of the incapacity; ..."

5. The respondent does not dispute that he was away from work only for the three days but his counsel, Mr Jack Costello, argued, rather boldly I thought, that his client had had a loss of earning capacity ever since the accident: that was more than a week: therefore he was entitled to damages for a loss of earning capacity from the time of the accident: that is much more than $210.00. If the respondent really had faith in that argument one would have expected him to have cross-appealed, asking for more for past loss. He has not cross-appealed, and, I suggest, sensibly. The phrase "loss of earning capacity" in the context of the placitum takes its meaning from the preceding words "incapacitated for work". This man was "incapacitated for work" only for three days: he was away from work only for three days. The generally accepted meaning of the placitum, that a person must be away from work for more than a week before qualifying for damages for loss of earnings is the correct one. Otherwise the placitum would lose most of its meaning when any loss of earning capacity had been proved. The appellant succeeds on that point.

6. As to future loss the learned Magistrate said:-
    " It is convenient to indicate at this stage that there
    is no suggestion that the plaintiff's retrenchment from
    Santos" (he was working there when he had the accident) "was
    in any way the consequence of his injuries suffered in the
    accident. Following his retrenchment in October or November
    1993 he was unemployed for a period of approximately seven
    or eight months. In June 1994 he obtained work as a
    storeman with Radio Rentals. His position involves him in
    providing small and consequently light parts to repairmen
    employed by Radio Rentals. The plaintiff is able to do that
    work without physical consequence. However, his position to
    date is casual. There is no indication of when and if it
    will become permanent. Of consequence, however, Radio
    Rentals also operates a store from which larger and heavier
    items such as refrigerators, televisions, microwaves, and
    the like are dealt with.

Mr Eriksen" (the surgeon) "and indeed the other medical
    practitioners whose reports have been tendered, indicate
    that the plaintiff has as a consequence of his injury a pre-
    disposition to suffering further pain unless he exercises
    care in how and what he lifts. Mr Eriksen suggests he has a
    potential for back pain on heavy lifting and he suggests a
    weight of 35 kilograms is the limit which the plaintiff
    should attempt. Mr Eriksen also suggests the plaintiff must
    be careful of unguarded movements which might aggravate his
    condition. All of that will have some consequence to the
    plaintiff's future earning capacity."

7. The learned Magistrate then refers to Medlin v SGIC (1995) 127 ALR 180 and to the distinction made by the High Court between loss of earnings and loss of earning capacity. He goes on:-

"I am in no doubt that the plaintiff has suffered a loss of
    earning capacity. In the event that he is moved from the
    storeroom area where he is presently employed to the other
    Radio Rentals storeroom he will have difficulty in doing the
    required work. In the event that he loses his position with
    Radio Rentals completely he will be forced on to the open
    labour market where he will be at a severe disadvantage when
    compared to others seeking employment in similar storeroom
    type work. The plaintiff is presently 44 years of age.
    With his background and the type of work he is presently
    engaged in the probability is that he will be required to
    work until retirement age. For the plaintiff that is a
    further 21 years or thereabouts of working life. Apart from
    that the plaintiff will have to employ tradesmen in the
    future to do the maintenance and renovation work which he
    previously did. I assess the plaintiff's loss of earning
    capacity in the amount of $20,000."

8. I suspect the appellant was nettled by the assessment of $20,000, especially in the light of some remarks made by the magistrate during the hearing. The transcript shews it was just before lunch and he was trying to persuade the parties to settle. He said (in part):-

"The difficult area is what he is entitled to for future
    loss, and we can all have our own views, but we are all
    ruled by what the Supreme Court says, and the Supreme Court
    says that he has got to get something in the context of this
    case for the loss of a chance, just in case he loses the job
    with Radio Rentals and he is on the open labour market where
    he is at a disadvantage to others, and again, I try and
    express myself fairly carefully. Some of the figures that
    the Supreme Court suggest cause me to raise my eyebrows, to
    use Millhouse J's expression, but I am stuck with them just
    as you are, ... something in the order of 10,000 for the
    future loss might be around the mark."

9. Then he went and awarded $20,000] Of course, that was after hearing all the evidence. When he said "$10,000" he had heard only the respondent. Later he heard the respondent's wife and Mr Eriksen.

10. I was referred to the words of the previous Chief Justice in Hinton v Mill (1991) 162 LSJS 440. King CJ said (at 442):-
    "...That does not mean, however, that a judge or magistrate
    is not entitled to form and express provisional views about
    the case including the credibility of witnesses. ... It is
    an important part of the role of a magistrate in a busy
    court to endeavour to prevent the prolongation of hopeless
    cases by indicating his provisional views to counsel at an
    appropriate stage in the hearing. It is important, of
    course, that he should not close his mind to other views,
    and, if the case proceeds, be able to retain an open mind
    until the conclusion of the case. An indication of the
    judge's provisional views will often assist counsel and
    solicitors in advising their client and will assist the
    parties in determining their attitude to the case. It does
    a defendant no service for a magistrate to permit him to
    proceed with a hopeless defence without any indication as to
    the magistrate's provisional view of the strength of the
    prosecution's case. Timely indication of a magistrate's
    provisional view may assist a defendant to a sensible
    decision and may serve to expedite the flow of business
    through busy courts.

It is important, of course, that when a magistrate decides
    to indicate a provisional view, he should express himself in
    terms which make it clear that he retains an open mind and
    will give proper consideration to any further evidence that
    is adduced. He should avoid blunt and dogmatic expressions
    which may create an impression, however unjustified, that
    the magistrate has a closed mind on the subject."

11. King CJ was speaking of criminal procedures but the same principles apply in the civil jurisdiction. The magistrate was careful not to be definite in what he said and counsel at the time for the appellant probably realised that. The appellant should not have taken - if he did - that intimation as a definite assessment: there was still plenty of water to pass under the bridge.

12. Mr Ben Krupka, for the appellant, protests about what the magistrate said: his protests are not a reason to reduce the assessment of $20,000.

13. Yet, what of the amount itself? I was reminded of what I said in Skurray v Jones and O'Callaghan (1993) 173 LSJS 440 at 443 - I have said as much in other cases as well:-
    "The magistrate has correctly canvassed the factors relevant
    to an assessment of future loss but, with respect to him,
    has come to a figure which seems to me to be much too low.
    I asked counsel for guidance as to how I should go about
    making my own assessment. They replied, as I knew they had
    to, that it is simply a matter of impression. My impression
    is that $10,000, double the original assessment, is more
    appropriate."

14. It is a matter of impression: each case must be decided on its own facts and on the impression the assessment under attack makes upon whomever is reviewing it. As Mr Costello pointed out, $20,000 for a man with a working life left of about 20 years is only $1,000 a year. Bearing in mind the respondent's history, my impression is that that is little enough. I am not able to find that the award is "manifestly excessive".

15. The appellant therefore fails on the second point.

16. The appeal will be allowed but only to the extent of reducing the respondent's damages by $210.00.

17. I shall hear the parties on costs.