Salkeld v Cocca
[2013] SASCFC 138
•18 December 2013
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
SALKELD v COCCA
[2013] SASCFC 138
Judgment of The Full Court
(The Honourable Justice Gray, The Honourable Justice Anderson and The Honourable Justice Blue)
18 December 2013
DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - REMOTENESS AND CAUSATION
TORTS - NEGLIGENCE - APPORTIONMENT OF RESPONSIBILITY AND DAMAGES - APPORTIONMENT IN PARTICULAR SITUATIONS AND CASES
Appeal from decision awarding damages to respondent to compensate her for injuries she received in a motor vehicle accident.
The respondent pedestrian was crossing a main road when she was knocked down by a vehicle driven by the appellant. Neither party saw the other until impact. Liability for the accident and apportionment was disputed at trial. The judge found the respondent guilty of contributory negligence and apportioned responsibility for the accident as 90% against the appellant and 10% against the respondent. The appellant submits this apportionment is in error and it should be higher against the respondent.
Held - on question of liability: Appeal dismissed. The apportionment by the trial judge was fair and reasonable (at [18]-[25]).
Following the accident the respondent returned to work and shortly after her return she was the victim of a violent armed robbery whilst at work. The respondent suffers from post-traumatic stress disorder and psychiatric injuries. The judge held both the motor vehicle collision and the robbery were contributing causes to an impairment of the plaintiff's earning capacity, and assessed the damages at $213,820 inclusive of interest. The appellant submits the judge erred by conflating the two separate incidents as contributing to the psychiatric injury, and thus erred in calculating the sums awarded for non-economic loss, past economic loss and future economic loss.
Held - on question of quantum: Appeal dismissed. Damages as calculated by the trial judge were not erroneous (at [49]-[56]).
Civil Liability Act 1936 (SA), referred to.
Australian Eagle Insurance Co Ltd v Federation Insurance Ltd (1976) 15 SASR 282; Strong v Woolworths (2012) 246 CLR 182, discussed.
SALKELD v COCCA
[2013] SASCFC 138Full Court: Gray, Anderson and Blue JJ
GRAY J. I agree with the orders proposed by Anderson J. I do not wish to add to his reasons.
ANDERSON J.
Introduction
This is an appeal from a decision of a District Court judge who awarded the respondent damages to compensate her for injuries she received in a motor vehicle accident.
The appeal relates to both the trial judge’s apportionment of liability for the accident and also the assessment of damages.
The respondent was a pedestrian who was struck by a motor vehicle driven by the appellant while she was crossing Glen Osmond Road on 5 April 2007. She was in the course of her employment and taking money from the Arkaba Pharmacy to the bank on Glen Osmond Road.
The trial judge found that the respondent was guilty of contributory negligence and apportioned responsibility for the accident as to 90% against the appellant and 10% against the respondent. The appellant suggests that a more appropriate apportionment of liability would be two-thirds against the appellant and one-third against the respondent.
Some months after the respondent returned to her work following her initial recovery from the injuries she received in the accident she suffered from another traumatic event in that, whilst in the course of her employment at the pharmacy, the pharmacy was robbed. She had a knife held to her throat and was dragged down the road by the robber after the robbery, effectively as a hostage of shield. There is a question as to what aspect of the undisputed post-traumatic stress disorder the respondent suffers was caused or contributed to by the accident as distinct from the robbery. This is in addition to the musculo-ligamentous injuries to her neck and lower back.
I will deal with the detail of the assessment of damages in due course. The appellant appeals against the assessment on the basis that the sum awarded for non-economic loss was excessive and likewise the amounts awarded for past economic loss and for future economic loss were also excessive.
The respondent has filed a notice of alternative contention submitting that the amounts allowed on both past and future gratuitous services should be increased and that there should be an award for both future paid care and future medical expenses.
Background
The respondent’s duties at the Arkaba Pharmacy included the banking. The pharmacy was situated in the Arkaba Shopping Centre adjacent to the Arkaba Hotel on the south-eastern corner of the intersection of Fullarton Road and Glen Osmond Road. The pharmacy was a customer of BankSA and banked at the branch on the northern side of Glen Osmond Road approximately 100 metres north-west of the intersection of Fullarton Road and Glen Osmond Road.
In about the middle of the afternoon the respondent left the pharmacy, crossed Fullarton Road then headed north up Fullarton Road to the intersection with Glen Osmond Road. She then turned left and walked along the southern footpath on Glen Osmond Road, passing the Fountain Inn Hotel on her left side. The bank was on the opposite side of the road.
Davey Street forms a junction with Glen Osmond Road an estimated 100 metres from the intersection of Fullarton Road and Glen Osmond Road. The respondent commenced to cross the road and had reached a point near the middle of the road when the collision occurred. The vehicle driven by the appellant collided with the respondent. A plan of the accident scene was prepared and tendered by consent. The plan shows that the approximate centre of Glen Osmond Road is about 7 metres from the southern footpath. In other words the respondent had covered almost that distance prior to the impact. The measurement is derived from using the scale of the plan.
The vehicle driven by the appellant had been stationary at the intersection of Davey Street and Glen Osmond Road waiting for traffic to clear. It was the appellant’s intention to turn right into Glen Osmond Road and she did so when she thought the roadway was clear. She did not see the respondent at any stage until the impact. Likewise the respondent did not see the appellant until the impact.
The respondent lay on the road after the collision until an ambulance came. She was taken to hospital and later discharged but remained unfit for work for a few weeks.
At the trial the appellant admitted negligence and conceded that she should bear the greater share of responsibility for the collision. Apart from the appellant and respondent there was one eye witness who confirmed the circumstances of the accident. The appellant told the court that she had collected a child from a school nearby in Parkside and had come via back streets to Davey Street. She had waited in a line of cars in Davey Street while vehicles ahead of her turned into Glen Osmond Road, both to the left and to the right. She came to a halt at the intersection of Davey Street and Glen Osmond Road. She said she saw a break in the traffic to the right and then a sufficient break to the left to enable her to turn. She did not see the pedestrian. She became aware of the pedestrian and slammed on her brakes but it was too late and the collision occurred. She did not know how fast her vehicle was travelling.
Negligence – contributory negligence
The trial judge held that both the appellant and respondent were negligent. His Honour said at [51]:
[51] In my view there was a gross departure of the standard of care of a reasonable motorist by the defendant. Her lookout was grossly defective. As she drove her vehicle north to the mouth of Davey Street the pedestrian plaintiff must have been close by. As the defendant was checking the traffic prior to moving off, the plaintiff must have either stepped off the kerb or have been about to do so. At that time they must have been only metres apart. Then, as the defendant was about to drive off into Glen Osmond Road, the plaintiff must have been moving across the roadway almost straight ahead of the defendant’s line of sight (Nb there is no suggestion in the evidence that the plaintiff stopped in the course of her journey across Glen Osmond Road). At neither juncture did the defendant see the plaintiff.
Mr Livesey QC for the appellant argued that the apportionment of liability by the trial judge was disproportionate to the respective culpability of the parties. During argument he suggested that a more appropriate apportionment would have been two-thirds as against the appellant and one-third against the respondent. I do not agree with this submission. In my view the trial judge’s assessment was appropriate. The main consideration is that the respondent had covered two lanes of Glen Osmond Road, a distance of approximately 7 metres, and was there to be seen. There is no explanation as to why the appellant did not see her. Maybe she was distracted but there is no evidence as to that. Whatever the case, her driving indicated gross negligence in my view.
By the same token the respondent had to take care for her own safety and was attempting to cross a busy four-lane road and to watch for traffic not only from her left and her right but also potentially from Davey Street. She failed to do this adequately. The apportionment in my view represents an appropriate apportionment for an accident of this type and particularly having regard to the fact that the pedestrian had covered 7 metres without being seen by the driver.
Mr Livesey also argued that the apportionment was inappropriate because the respondent chose not to use the pedestrian crossings at the intersection of Glen Osmond Road and Fullarton Road. By using two pedestrian crossings at that point she would have placed herself on the correct side of Glen Osmond Road to do the banking and would not have had to cross the busy road. She was lawfully entitled, however, to cross where she did but that required her to exercise reasonable care for her own safety. She failed to do this and was penalised accordingly.
Mr Livesey argued that the judge found that the respondent left the kerb at the same time as the appellant proceeded to drive out of Davey Street. He submitted that on this finding the apportionment of liability could not be rationalised.
The judge did say that at [39] but clearly meant “at or about the same time” as is clear from his remarks at [51] which I have set out earlier. The judge clearly meant to say that, when the appellant was about to drive into Glen Osmond Road, the respondent must have been moving across the roadway. That is how the earlier comment at [39] must be read. Commonsense dictates that it must be so.
If Mr Livesey’s interpretation were correct, the accident would not have occurred as the appellant would have been well into Glen Osmond Road heading east as the respondent continued to cross the road.
As these types of cases invariably illustrate, each case is decided on its own facts. Previous decisions are of very limited assistance in such litigation. General principles may emerge, such as the greater obligation on the driver of a moving vehicle than that of a pedestrian, the fact that a vehicle can cause much more damage, and other such considerations. However, those cases do not assist in my view in deciding what the correct apportionment in this matter was.
In my view the following are decisive factors in determining responsibility for the accident:
1.The road on the southern side was obviously clear when the respondent started to cross.
2.Whilst the appellant was stationary the respondent had walked onto the road and was easily visible.
3.When she commenced driving onto Glen Osmond Road the appellant was driving behind and towards the respondent.
4.No explanation or excuse has been offered by the appellant for not seeing the respondent.
5.This was not a case where a driver was suddenly confronted by a pedestrian stepping off a footpath into her path when she was travelling at speed.
6.This was not a case of the respondent stopping in the path of the appellant and giving her no chance to avoid an accident.
7.At all times the respondent must have only been a matter of a few metres from and almost directly ahead of the appellant.
As I have said, the apportionment reached by the trial judge represents a fair and reasonable apportionment of the respective culpabilities of the parties and should not be interfered with. I would therefore dismiss the appeal on the question of liability.
Damages
The respondent was 46 years old at the time of the accident. At that time she had two jobs, one in the pharmacy working as a pharmacy assistant and also one where she was employed by Nutrimetics as a warehouse assistant on a casual basis.
In all she worked 24 hours a week at the pharmacy and 16 hours per week at Nutrimetics. From the pharmacy she received a gross wage of $472 per week and from Nutrimetics she received a gross wage of $149 per week.
After being transported by ambulance to hospital following the motor vehicle accident the respondent was discharged later that day. She returned to work at the pharmacy in late April 2007 but initially worked reduced hours. By 3 September 2007 she was working the same number of hours as prior to the accident. She returned to her work at Nutrimetics in early September 2007 but in December the company closed its Adelaide office and the respondent no longer had that employment available.
On 21 February 2008 a robber entered the pharmacy wearing a beanie. He held a knife to the respondent’s throat and demanded money. She provided him money. However, he continued to hold her until he had gone some distance away from the pharmacy when he released her. Clearly she was severely traumatised by the robbery. She did, however, return to work at the pharmacy about two weeks after the robbery and gradually increased her hours from an initial reduced working week. She commenced working full time at the pharmacy in August 2011 and at the time of the trial she worked a full 37 hours and received a net wage of $638 per week.
The judge found that, “She was a plainly honest witness, who amongst other things, drove herself to return to work at the earliest possible time after both the accident and later the robbery”. This finding is not disputed. The judge accepted the respondent’s evidence that prior to the accident “she was coping mentally and physically with two jobs, a family and a household”.
I set out the summary of the assessment of damages in paragraph [134] of the trial judge’s reasons:
[134]Summary of Assessment –Including Reduction for Apportionment
Non-economic Loss – Pain and Suffering
(scale value 18) 33,950.00
Economic Loss – Loss of Earnings
Past15,301.00
Interest on Past Economic Loss 1,722.00
Future 135,000.00Loss of Superannuation Benefits
Past 1,530.00
Future 13,500.00Gratuitous Services
Past 20,000.00
Interest on Past Gratuitous Services 4,062.00
Future 10,000.00Special Damages – Travelling Expenses
Special Damages 2,011.90
Travelling Expenses including Interest 500.00$237,577.00
Less 10% for contributory negligence $23,757.00
Total $213,820.00
The challenged awards
The figure for non-economic loss, based on a scale value of 18, is challenged in this appeal. The appellant submits that the award is manifestly excessive. The appellant submits that the trial judge conflated the effects of the road accident with the effect of the robbery and as such has erred in his assessment of damages. This conflation argument relates to both the assessment for non-economic loss and also for future economic loss and will be dealt with separately later in these reasons.
The appellant also submits that the amount awarded for past economic loss, namely, $15,301, is excessive. This is on the basis that the award includes an allowance for the loss of a chance to obtain alternative employment after the respondent lost her job at Nutrimetics. $10,000 was awarded for this aspect.
In relation to future economic loss, or future loss of earning capacity, the appellant again suggests that the learned trial judge did not distinguish between the effects of the robbery and the effects of the accident in his finding that if she did lose her job at the pharmacy she would to all intents and purposes be unemployable. The respondent was awarded $135,000 for future loss of earning capacity.
Alleged conflation by the judge
I set out the judge’s reasons at paragraphs [88]-[93]:
[88]My concluded view is that the plaintiff suffered what I will call post-traumatic stress disorders from both the accident and the robbery.
[89]The defendant’s next contention was a further and alternative proposition that the Post-Traumatic Stress Disorder arising from the robbery severed the causal link between the defendant’s negligence and the claimed mental health component of the plaintiff’s injury.
[90]In considering this argument I have had regard to Sections 34 and 35 of the said Civil Liability Act and the authorities relied upon by counsel for the defendant.
[91]I reject this alternative contention. The evidence does not support any such unequivocal event. The plaintiff was able to return to work, albeit modified work, within a fortnight of the robbery. She has continued to have intrusive re-experiences of both events. Indeed, Dr Hilton regarded the long term psychiatric consequences of the vehicle accident to be more severe. Dr Ford regarded 50% of the plaintiff’s incapacity as being due to the vehicle accident (Exhibit P7 at 44).
[92]My concluded view is that both events have caused psychiatric harm to the plaintiff. The effects of the robbery have not overwhelmed the effects of the motor vehicle accident. They were both contributing causes to the plaintiff’s harm. That view is implicit in my acceptance of the expert psychiatric evidence of, in particular, Dr Hilton to that effect, but in addition the evidence generally points unequivocally to that conclusion.
[93]I mention here that, on the evidence, I regard the psychiatric insult of the motor vehicle accident as rendering the plaintiff more vulnerable than she would otherwise have been to adverse reaction to the insult of the robbery. In that sense there is a component of the consequences of the robbery which I attribute to the accident.
Mr Livesey points to the last sentence in paragraph [93] set out above. He submits this is proof of the conflation by the trial judge. He submits that an increased vulnerability without more should not sound in damages. At trial the appellant had argued that the robbery was a novus actus interveniens. This argument was rejected by the judge and is not pursued in this appeal. The judge specifically finds at paragraph [92] that the respondent suffered from psychiatric harm caused by both the motor vehicle accident and the robbery. Mr Livesey submits that, whilst there are two concurrent causes for the respondent’s problem, only one of those causes is compensable and that the judge has erred by conflating the two.
As I understood Mr Livesey’s argument, it is that the finding of increased vulnerability is not compensable. Taken alone that may be so, but that is not what the judge found.
It should be noted that the judge specifically mentioned in paragraph [90], set out earlier, that in considering this whole matter he had regard to both sections 34 and 35 of the Civil Liability Act 1936 (SA). Section 34 under the subheading “General Principles” below the heading of “Causation” is as follows:
34—General principles
(1)A determination that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation); and
(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability).
It is clear from what he says at [92] that the judge in making his assessment relied on the evidence of Dr Hilton. I set out paragraphs [72] and [73] of His Honour’s reasons:
[72]It is to be noted that in respect of the final diagnosis Dr Hilton pointed out that the psychological factors there mentioned included the symptoms of a Post-Traumatic Stress Disorder and a Major Depression. In the course of her evidence, Dr Hilton pointed out and explained that multiple diagnoses are not unusual. She regarded the plaintiff’s psychiatric condition arising from the vehicle accident as permanent and, in effect, was of the opinion that the plaintiff was unfit for other than the sympathetic employment that she currently holds (415).
[73]As to the respective contribution of the vehicle accident on the one hand and the robbery on the other, she said that, of the overall disability of 10 per cent to 12 per cent, she would attribute out of 10, six to seven to the vehicle accident and three to four to the robbery (420). She emphasised that the physical pain associated with the vehicle accident was a relevant factor in such an analysis, (419-420), and further she regarded the psychiatric impact of the vehicle accident as rendering the plaintiff more vulnerable to the adverse effects of the robbery (419).
Mr Livesey referred to the decision of Australian Eagle Insurance Co Ltd v Federation Insurance Ltd (1976) 15 SASR 282 at 292. King CJ said at 292:
… It is a question of fact and degree. If, at the time of the second accident, the physical consequences of the first accident have stabilised to the degree that they can fairly be regarded as spent and as leaving only a vulnerability to injury from future trauma, the incapacity flowing from the second accident cannot be regarded as the result of the first accident but must be regarded as the result of the second accident only.
In the terms of s 34 of the Civil Liability Act Mr Livesey submits that s 34(1)(a) has not been made out. That is what is referred to as factual causation. It is a statutory enactment of the old “but for” test: see Strong v Woolworths (2012) 246 CLR 182 to the effect that the enactment in the Civil Liability Act is a statutory statement of the common law “but for” test of causation, that is, whether the plaintiff would not have suffered the particular harm but for the defendant’s negligence.
Mr Livesey submits that paragraph [93] does not make the necessary finding to bring the matter within the terms of s 34(1)(a). Mr Livesey submits that it was never established on the evidence, that were it not for the motor vehicle accident, the plaintiff would not have sustained the reaction she did following the robbery. He submits no consequences of the robbery should have been attributed to the defendant.
The judge sets out the matters complained of by the respondent upon her return to work at [63] as follows:
[63]The plaintiff said, and I accept, that she experienced an ‘emotional reaction’ to the accident (80). She particularised the following matters:
· upon returning to work at the Pharmacy she felt depressed and sad about the fact that she could have been killed in the accident and that, in the result, her boys would have been motherless (80, 81);
· she often dreamed of being killed and also of being upset and concerned about who would look after her sons (89, 90);
· she dreamed also about the semi-trailer not stopping and she would wake relieved that it was only a dream (90);
· she also cried repeatedly after the accident – to start with everyday and then it lessened (90-91);
· she found being in a car ‘scary’ and would insist on being the driver and therefore being in control, and this anxiousness has persisted (91);
· her motivation, concentration and energy levels were sapped by the accident but by the time of the robbery, (ie 21 February 2008), they had improved (93-94); and
· since the accident she found crossing busy roads overwhelming and that problem has not improved over time (94).
The respondent did not seek treatment at the time for the experiences set out by the judge. She did relate them to Dr Hilton, a specialist psychiatrist, when she saw her after the robbery.
After the robbery the respondent also saw Dr Kelly, a GP, Dr Ford, a psychiatrist, and Mr Craig, a psychologist, in addition to Dr Hilton. She was also then later referred to another psychiatrist, Dr Blakemore.
The judge found that each of the doctors to whom the respondent was referred, “accepted that the plaintiff suffered a psychiatric condition or illness as a result of both the vehicle accident and the robbery”.
It is of significance that after the robbery the respondent became “obsessively vigilant”. She experienced intrusive dreams about the robbery and one such dream included a combination of both the accident and the robbery.
The judge dealt with the respondent’s residual disabilities at [76] and [77]:
[76]First, the plaintiff suffers with the permanent disabling symptoms of the Post-Traumatic Stress Disorder and or the Chronic Pain Disorder including intrusive flashbacks and dreams, disturbed sleep, feelings of depression and sadness, crying, irritability, poor concentration, low energy levels, feelings of insecurity in connection with driving and traffic.
[77]Second, the plaintiff suffers with the ongoing problems of pain and disability arising from soft tissue injuries to her neck and back. These too are permanent (see Mr Fry Exhibit D10). In particular she has problems bending, lifting and reaching. Such activities cause aching and pain in the neck and back (134). At work she is excused from carrying out the cleaning duties such as mopping, sweeping, carrying boxes and any tasks involving lifting and reaching (576). Further, she is permitted to have breaks from time to time (577-578). She takes painkilling medication to address the aches and pains and uses a heated wheat bag to apply to her neck and back (135). At home she is assisted by her parents. She does work in the house, but the more arduous chores such as mopping, vacuuming and cleaning bathrooms, is left to her mother (137).
The judge finds that the respondent had intrusive re-experiences of both events and that they were both contributory causes to her harm. The judge then goes on to say that the psychiatric impact of the motor vehicle accident rendered the respondent vulnerable. Mr Livesey’s point is that the mere vulnerability is not sufficient and does not sound in damages. However, in my view, the judge clearly finds in the terms of s 34(1)(a) that the negligence of the appellant was a necessary condition of the occurrence of the harm which resulted, that is, the overall psychiatric disability. The judge does not use that terminology but it is clear from the passages I have set out earlier that he made that finding. In my view he then found implicitly in terms of s 34(1)(b) that the appellant’s liability extended to the ultimate psychiatric harm albeit not to all of it. It is implicit in what he says without the specific words of the section being used.
I would therefore reject Mr Livesey’s argument on conflation.
Non-economic loss
On the basis of such rejection it is necessary to look at the actual awards made by the judge for the individual components of damage. The award for non-economic loss, namely, a value of 18, is in my view within a range of awards in such circumstances. This is a serious injury with serious consequences. Although the plaintiff may have been discharged from hospital within a short time her evidence, unchallenged, is that she suffers pain and discomfort every day. The pain she suffers is in her neck and lower back. She was aged 52 years at the time of judgment and therefore has to endure this continuing discomfort for the rest of her working life. In addition to the physical pain and discomfort there are the mental aspects of her road accident trauma as explained by the expert evidence which must be taken into account. In my view, whilst it could be said that 18 represents a value towards the higher end of a likely range, it is not such that it calls for interference by this Court. It is within a reasonable range of awards in my view.
Past economic loss
In relation to the award for past economic loss, in my view the judge has correctly made an assessment based on the valuation of a chance. I refer to paragraphs [105] and [106] of the judge’s reasons:
[105]In December 2007 the plaintiff lost her part-time job at Nutrimetics (ie $149.04 gross a week for 16 hours). She was managing that job with considerable help from her workmates. She did not try to find another such job. I consider she would have attempted to do so had the accident not disabled her. On 21 February 2008, the robbery occurred. Finally, in August of 2011, she was given full-time hours at the Pharmacy, which would be the cut off time for any such further allowance.
[106]I remind myself that any allowance for economic loss, in a negligence case, whether it be for past or future, is effectively a valuation of what the plaintiff would have earned but for the negligent event. It is a valuation of a chance. An account must be taken of the factors, thrown up by the evidence, which affect the value. The exercise is easier for the past than for the future, because more is known, but it is essentially the same exercise. (Malec v J C Hutton Pty Ltd (No 2) (1990) 169 CLR 638 at 542-43; Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 118-119 and Luntz Assessment of Damages 4th ed 94-101).
The award of $10,000 for this valuation of a chance is, in the circumstances of this case, not unreasonable and does not justify interference. The award is for loss of earning capacity and $10,000 is a fair figure to compensate for the loss of a chance of obtaining another part-time job with the loss of the Nutrimetics employment. The finding that the respondent could have attempted to find another part-time job after she lost her job at Nutrimetics is based both on evidence and the judge’s impression of the witness as hard-working and honest as referred to earlier in these reasons at [30]. $10,000 is a modest amount for the loss of a chance given this woman’s work history and work ethic.
Future economic loss
In relation to future economic loss, in my view the judge’s reasoning is again correct. Mr Livesey argues that the judge has worked backwards from a result of a total loss of income and then discounted the capitalised amount to reach the figure of $135,000. Mr Livesey criticised the judge’s methodology. In my view there is nothing wrong with such an approach. In looking to the future, the method used and the calculations based upon that method are appropriate. If the respondent lost her job, on the judge’s findings she would be unemployable. In that circumstance the method used is appropriate. It is a convenient way of assessing a total loss. The judge then makes a substantial discount because she still has her job. The discount allowed by the judge, namely 60%, is a fair discount having regard to all the contingencies which he has taken into account. I would not interfere in the judge’s assessment for future economic loss. By whatever method is used, the end result of $135,000 for future loss of earning capacity is reasonable. If the pharmacy went out of business or she lost her job, then she would have great difficulty in finding employment. Looked at in that way, the figure is well within a reasonable range.
I consider that the judge has assessed damages across the board in a fair and reasonable way. The awards made by the judge for each component represent a proper amount to compensate the plaintiff for her pain and suffering, loss of amenities, loss of earning capacity past and future and including the allowance for the loss of a chance as referred to by the trial judge.
I would dismiss the appeal on the question of quantum. Therefore in my opinion the appeal should be dismissed. I have not dealt with the specific issues raised on the notice of alternative contention. The notice was to achieve an offset if this Court changed the apportionment of liability or interfered with the award of damages. In the circumstances it is not necessary to deal with the notice.
BLUE J. I agree with Anderson J.