Simcock v Devlin No. Scgrg-00-349

SIMCOCK v DEVLIN
[2000] SASC 237

Full Court: Prior, Williams and Martin JJ

1................ PRIOR J:....................... In the District Court, the respondent recovered a total sum of $303803.05 as her damages resulting from injuries she sustained when a vehicle in which she was a passenger collided with a tree in country South Australia on 1 September 1996. The respondent was 19 years of age at that time and 22 at the time of the trial. An award of $250000 for future economic loss is said to be manifestly excessive.

In 1995 the respondent had commenced a course at the University of Adelaide seeking to obtain an Associate Diploma of Applied Science, Horse Husbandry and Management. She passed her first year of studies well, obtaining two distinctions, a credit and six passes in the subjects she then undertook. Academic results were not as good in the following year, but she did succeed in obtaining her formal qualifications after having to sit for a supplementary examination in a subject she failed to pass soon after the accident.
As a result of the collision the respondent sustained some left frontal contusions and post-traumatic amnesia. She had some time in the Julia Farr Centre before continuing as an outpatient from 21 September 1996. She underwent assessment for the purpose of reobtaining her driving licence, which had been cancelled because of her injuries. The evidence of a neuro surgeon was that the respondent suffered a moderately severe brain injury as a result of the collision. Neuro psychologists also assessed the respondent. She was diagnosed as suffering reduced memory for verbal information, now having a tendency to become overloaded when complex or lengthy information is presented. As a result of the collision she also has a tendency to rush through tasks rather than plan well ahead. Before her injury the respondent was said to have a level of intellectual ability estimated to fall into the average to high average range. After the injury the respondent’s behaviour was noticed to be “often mildly socially inappropriate”. The conclusion of one of the neuro psychologists was that the respondent “had reduced working memory capacity, decreased verbal new learning and memory ability, impaired mental arithmetic, and a mild‑moderate degree of executive dysfunction, including poor planning and organisational skills, decreased self-monitoring and self-regulation of behaviour, and mildly reduced verbal fluency”.
The respondent’s condition was said to have been considerably improved when further assessed by the neuro psychologist in November 1997, the respondent then generally performing tests then administered at the expected levels for her age. However, she was said to have had difficulty formulating a strategic approach and incorporating error feedback to modify her behaviour on an untimed spatial maze learning task. Whilst there was an improvement in the respondent’s executive functions there were some “very mild persisting problems with planning/organisation and self-regulation of behaviour”. This tended to be associated with damage to the frontal lobes of her brain, consistent with the frontal lobe pathology observed on initial CT scans conducted soon after the collision. The most significant finding then made by the neuro psychologist, who had begun her assessments of the respondent two weeks after the accident, involved a finding that there was then present an “acquired discalculia/acalculia”, or disturbance in computation associated with brain damage and a specific deficit in mathematical processing. Poor mathematical skills were said to impact upon the respondent’s ability to obtain and maintain a management position within the horse husbandry and training industry.
The trial judge found that before the collision the respondent was quite good with numbers. Her mother said that her daughter now has difficulty making decisions, handling money or remembering telephone numbers, as well as frequent concentration problems, disorganisation and slowness of thought. Whilst the respondent has obtained employment as a kennel man, she has difficulties in that work as a result of the accident associated with her difficulties with arithmetical tasks and comprehending the conceptual nature of any unexpected quasi mechanical type activities. Her condition also causes difficulty when dealing with money and administering injections to hounds. The evidence was that she cannot perform this duty without the use of a calculator or paper and pencil. The time taken to discharge these duties is unacceptable to her employer. She holds no position of authority because she is unable to quickly make appropriate decisions. The respondent spoke of having to be supervised in her work and not being able to become a huntsman herself. Essentially she was able to perform the most menial of tasks and even then required some supervision. This condition is plainly a significant component in the proper assessment of the respondent’s future economic loss.
Besides the award of $250000 for future economic loss, the trial judge awarded $30400 for non-economic loss, $2500 for gratuitous services, $11934 for past economic loss inclusive of interest and $8969.05 as special damages.
The evidence was that the respondent was earning $270 per week net, with rent free accommodation valued at $130 per week. The trial judge’s view was that had the respondent been able to seek employment in her chosen field of the horse thoroughbred industry it was unlikely that, at that time, she would have earned any sum significantly different from that which she presently earnt. As for the respondent’s prospects, apart from her having suffered injury in the collision, His Honour was satisfied, having regard to the respondent’s history and her initial academic record, that while she might be described as a good student she was not the type of person who could correctly be described as an outstanding student. In His Honour’s view, the respondent “would, by dint of her capacity and personality, have proceeded in her desired field of the horse thoroughbred industry over a period of years.” The trial judge also said that there was nothing in the evidence to suggest that the “pre-accident plaintiff was other than a person who had an excellent capacity to get on with her peers and others, who had a personality capable of their acceptance, and who was more likely than not to have achieved her objectives in a career sense.”
For the purpose of assessing future economic loss the trial judge accepted evidence that the industry which she was intending to enter was “large, offering many jobs, particularly in middle management.” His Honour said that whilst in that industry the respondent would have been earning about the same as she was at trial after three years, her attributes were such that she would have achieved preference and that, from about her mid twenties onwards, would have been achieving a salary of about $5000 per annum net in excess of that which she presently had. The trial judge said that if uninjured, the respondent would have thereafter progressed to middle management in the industry. His Honour accepted that $40000 gross per annum was a salary likely to be achieved after 10 or so years of experience. Besides that, there was the possibility of employment in sections of the industry paying up to $60000 gross per annum. The trial judge said he thought the probabilities were that the respondent was less likely to achieve employment of that level “rather than more likely”. The trial judge then said:
“Thus, whilst it is more likely than not that the plaintiff would have progressed from her present salary to a salary of approximately $40000 gross per annum by about her mid thirties the possibility of achieving a salary in excess of that sum, but not in excess of $60000 gross per annum must also exist. The precise arithmetical calculation of the plaintiff’s loss over such a period is impossible. It is necessary to make a broad assessment of the plaintiff’s loss having regard to the both positive and negative contingencies which are applicable.
This assessment is to be made recognising that the plaintiff’s current level of employment is probably the maximum level of employment which she can hope to achieve with a sympathetic employer. Thus, whilst she will no doubt receive the regulated pay increases over the ensuing years they are likely to be worth less to her than such increases which would attach to a higher salary over that period. It is unlikely that her salary will henceforth ever be relative to other than a base grade salary.
There is nothing in the evidence to suggest that the plaintiff would do other than work to age 65. Of course, in assessing her future economic loss it is necessary to have regard to contingencies and that she may not is one such contingency. Those contingencies are perhaps more significantly adverse in an industry where there exists some form of physical danger than otherwise. However, in this regard it is important to acknowledge Dr Woodward’s evidence that the significant jobs in middle management are away from daily contact with horses and so, whilst this contingency exists, in my view, after the plaintiff is in her middle thirties it is significantly diminished by virtue of her having achieved promotion.
Allowing for those matters both in favour of, and contrary to, the interests of the plaintiff I assess her future economic loss at $250000. I have made this assessment using the post 1 July 2000 tax scale.”
The appellant submits that the essential findings of fact made by the trial judge do not warrant the award of $250000 for future economic loss. The evidence established an effective net income at trial which was not significantly different from that which she would have earnt had she not sustained injury in the collision. The finding that, in the absence of the injury, the respondent would have, by about her mid 20s, achieved a salary of about $5000 per annum in excess of that which she was actually earning at trial, suggested a loss of about $5000 per year in three years time for a period of some 10 years. Actuarial tables identified a total figure for a net yearly loss of some $11000, starting in 13 years time for up to 30 years. Future losses were said to be in the vicinity of $126000. The award of $250000 was therefore manifestly excessive.
The respondent says that the appellant’s calculations contain an important error. That apart, it is said the calculations failed properly to take into account the vicissitudes and contingencies relevant to the respondent’s case. The appellant wrongly focuses attention upon only one element of the award without regard to the exercise of the judge’s discretion in connection with the totality of the award under review.
The respondent contends that when the consequences of the respondent’s brain damage and the totality of her loss is taken into account the assessment of just under $304000 is not inordinately high nor wholly disproportionate to her loss, but merely represents fair compensation for the effects upon her of the brain damage sustained. The respondent relies upon the trial judge’s finding that the respondent showed qualities of leadership and of endeavour before the accident that are not irrelevant to the assessment of her future economic loss.
The respondent’s earning capacity had to be assessed upon the hypothesis that she had not been tortiously injured. The question for the trial judge was what the respondent was able to earn if she had not been tortiously injured, that question being answered by speculation to some extent. Ascertainment of earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history.[1] In assessing damages for a loss of earning capacity the court has to make an estimate as to what are the chances that a particular thing would have happened and reflect those chances, whether they are more or less than even in the amount of damages awarded.[2] When the law takes account of future or hypothetical events in assessing damages it does so only in terms of the degree of probability of those events occurring, taking the chance into account in assessing damages by assessing the degree of probability that an event would have occurred, or might occur and adjusting its award of damages to reflect the degree of probability.[3] Thus, the trial judge’s reference to the respondent achieving preference because of her attributes but for the accident is more accurately expressed as a strong possibility or probability rather than a certainty.
[1]      Malec v Hutton (1990) 169 CLR 638 at 639
[2]      Mallett v McMonagie (1970) AC 166 at 176
[3]      Malec v Hutton (1990) 169 CLR 638 at 643
In the attack made on the award for future economic loss, I think the appellant has failed to make due allowance for the fact that, as a result of her injuries, the respondent has been reduced to menial employment prospects very much dependent upon her being able to have a sympathetic employer. The fact that she had a number of offers of employment cannot mitigate the significance of the respondent’s future employment prospects. The circumstances do not make the calculations relied upon by the appellant an appropriate check on the adequacy or otherwise of the award made by the trial judge. Calculations of that kind are more relevant to claims made by mature persons in steady jobs than to a 20 year old on the eve of a particular career path. When the sad reality of her future employment prospects are properly taken into account the award made cannot be said to be manifestly excessive. Further, it properly makes allowances for the respondent’s vulnerability to loss of employment in the years ahead of her.
I would dismiss this appeal.

15.............. WILLIAMS J:. I agree.

16.............. MARTIN J:...... I agree that the appeal should be dismissed for the reasons given by Prior J.

JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT

Malec v Hutton (1990) 169 CLR 638 at 639
Mallett v McMonagie (1970) AC 166 at 176
Malec v Hutton (1990) 169 CLR 638 at 643

[2000] SASC 237

4 August 2000