State Rail Authority of NSW v Luckwell

[2000] NSWCA 223

NEW SOUTH WALES COURT OF APPEAL

CITATION:     State Rail Authority of NSW v Luckwell [2000]  NSWCA 223

FILE NUMBER(S):
40202/99

HEARING DATE(S):           8 August 2000

JUDGMENT DATE:            18/08/2000

PARTIES:
State Rail Authority of New South Wales v Darren Wayne Luckwell

JUDGMENT OF:      Priestley JA Heydon JA Foster AJA   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):        DC 5210/97

LOWER COURT JUDICIAL OFFICER:     Acting Judge George

COUNSEL:
Appellant - J.L. Sharpe
Respondent - A.C. Bridge SC / A. McSpedden

SOLICITORS:
Appellant - Gillis Delaney Brown
Respondent - Marsdens

CATCHWORDS:
Negligence
personal injuries
liability and quantum

LEGISLATION CITED:
Supreme Court Rules

DECISION:
Appeal dismissed with costs

JUDGMENT:

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA     40202/99
  DC     5210/97

PRIESTLEY JA
  HEYDON JA
  FOSTER AJA

Friday, 18 August 2000

STATE RAIL AUTHORITY OF NEW SOUTH WALES

1. LUCKWELL

   NEGLIGENCE - PERSONAL INJURIES - LIABILITY AND QUANTUM APPEAL.

   The plaintiff fell under one of the defendant’s trains from a platform at Glenfield Station. The trial judge held the accident was caused by the plaintiff’s losing his footing on the negligently uneven platform. In its appeal the defendant submitted that the circumstances of the accident were both unlikely and impossible to reconcile with objectively established facts. Various errors were said to have been made by the trial judge in assessing quantum.

   Held: there was material upon which the trial judge could properly reach his conclusion on liability. On quantum, the trial judge’s findings were all within proper ranges and the judgment sum within the limits of acceptable discretionary judgment.

   ORDER
   Appeal dismissed with costs.

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA     40202/99
  DC     5210/97

PRIESTLEY JA
  HEYDON JA
  FOSTER AJA

Friday, 18 August 2000

STATE RAIL AUTHORITY OF NEW SOUTH WALES

1. LUCKWELL

1. PRIESTLEY JA:  This is an appeal from a judgment by George ADCJ by which he ordered that the defendant State Rail Authority of New South Wales pay the plaintiff, Mr D. Luckwell, $538,232.86, for personal injuries suffered by the plaintiff because of the defendant’s negligence.

2. The plaintiff’s case was straightforward. It was not in dispute that on 29 July 1995, as one of the defendant’s trains began to pull out of Platform 3 at Glenfield Station, it struck the plaintiff and caused him severe injury. The most prominent of his injuries was the loss of his right arm at the shoulder. The plaintiff alleged and the defendant disputed that the plaintiff had fallen in the path of the train when he lost his footing due to the irregular surface of Platform 3.

3. The trial judge found that there was “a ridge ... present at the joint between the concrete edge and the bitumen surface” of the platform. The evidence, oral, documentary and photographic showed that Platform 3 consisted of two surfaces adjoining and parallel to one another running the length of the platform, the wider surface consisting of bitumen and the narrower surface, ending at the edge of the platform parallel with the train lines, consisting of concrete.

4. The trial judge said that the existence of the ridge where the two surfaces met, the concrete surface being the higher, was a breach of the duty of care owed by the defendant to the plaintiff. He also said that the nature of this defective condition of the platform would have been revealed by any reasonable inspection by any competent officer. He also held it was foreseeable that the ridge was likely to cause a user of the platform to trip and in the event a moving train was present could result in serious injury or death. On the basis of the plaintiff’s evidence about his movements immediately prior to falling to the track, and the condition of the platform, the trial judge held that the defendant had been the cause of the personal injuries suffered by the plaintiff.

5. The grounds of appeal in their final form as amended were very widely stated but were put more compactly in the oral argument. For the defendant it was submitted that: 1. the trial judge should not have accepted that the plaintiff had proved his case; 2. the trial judge had either wrongly failed to accept or had not properly dealt with evidence called in the defendant’s case putting quite a different complexion on the nature of the plaintiff’s fall on to the tracks; 3.  the trial judge had accepted a case, in the plaintiff’s favour, different from that which had been put forward on the plaintiff’s behalf; 4. the trial judge had not dealt with a body of evidence relating to incidents peripheral to the plaintiff’s fall and injury, but, according to the defendant, seriously damaging to his credit; 5. the trial judge had wrongly admitted evidence; 6. the trial judge should have found contributory negligence, and 7. the trial judge had failed adequately to explain his reasons for reaching some of the conclusions upon which he based his decision.

6. Finally, there were some aspects of the trial judge’s assessment of damages in which it was said he had been in error.

7. The defendant’s written submissions in the appeal covered a great many matters of detail and criticised almost every expression of opinion in the trial judge’s reasons. In oral submissions, counsel for the defendant sought to bring all these criticisms to bear upon the seven substantive heads of appeal concerning liability, listed summarily above.

8. Most of the defendant’s submissions on liability have to grapple with the difficulty that the factual findings made by the judge and necessary for decision all appear to have been supported by evidence which the judge accepted and arguably was entitled to accept.

9. The plaintiff in his evidence said that he had caught a train at Cabramatta, and had changed at Liverpool to a train that went to Minto where he intended to get off. By mistake he got off at Glenfield, Platform 3, thinking he was at Minto. Under that belief he moved southward along the platform past the head of the train he had just left. At Minto, he said, the exit would have been in that direction. There was no similar exit at Glenfield. Realising his mistake, he turned, intending to go to the differently placed Glenfield exit. As he turned around, he said, he remembered tripping, almost getting his balance back “and then ... I’ve tripped on that concrete, before the concrete, that’s when I’ve gone over ... When I landed on rail, I landed on my feet except my leg dislocated and has just gone straight out from underneath me, and that’s when I’ve had to reach over and grab the rail. I had to drag myself over” (Black AB 12). He was then asked to explain what he meant about the concrete when he tripped the second time. He said the bitumen was underneath the concrete, apparently indicating with his fingers, as counsel before us agreed, the distance by which the bitumen was lower than the concrete. The trial judge and plaintiff’s counsel both agreed that the distance he was indicating was about three inches (Black AB 12-13). He was then asked what he had actually tripped on. He said:

   “It wasn’t on. It was the - all the tar underneath the concrete had been worn away. It wasn’t just a little bit. It was going right along the whole platform.” (Black AB 13)

   The plaintiff then said that as this was happening the train had already started, he could hear the brakes (Black AB 13).

10. In cross-examination, it was put to the plaintiff that he had deliberately jumped on to the line either with the intention of committing suicide or of getting across to the other platform before the train moved off . He denied these accusations. It was also put to him that the story that he had tripped on the uneven platform was untrue; that he had made quite a different statement to police officers on 8 August 1995 while still in hospital. The high point of the claimed difference in this statement (which I do not think has the significance the defendant claims) was that it was recorded in a constable’s notebook that the plaintiff had said “I lost my balance and fell on to the tracks” (Blue AB 268).

11. In regard to the allegations that had been made against the plaintiff in cross-examination, other witnesses called in the plaintiff’s case testified to conversations in which the plaintiff had said that the reason for his fall was that:

    “... he’d stumbled and ... kicked his toe or his foot on something and fell over ...” (Mr D. Gray, plaintiff’s solicitor, two days after the accident, Black AB 168);
    ... he went to turn and ...tripped or stubbed his toe on the uprise in the concrete and just went straight over” (Mr J. Plummer, de facto husband of plaintiff’s sister Michelle, about three days after the accident, Black AB 100);
    “his toes got caught on the footpath. It was - it was unlevel there or something and his toes got caught then. That’s what’s made him trip and fall on to the tracks” (plaintiff’s sister Michelle, about three days after the accident, Black AB 104);
    “near the edge of the platform he tripped [on what] he’d said it was a bit of concrete, bit of cement that wasn’t quite even. The platform wasn’t quite even and he tripped on that” (Ms C. Moore, plaintiff’s de facto wife, three or four days after accident, Black AB 108);
    “near the front of the train and tripped on some pothole or something” (Mr B. Luckwell (brother) four or five days after the accident, p 4, extract of transcript 29 July 1998);
    “ he tripped” (Mr M. Luckwell, (brother) about nine days after the accident, Black AB 65, 80).

12. At the trial, counsel for the defendant objected to the giving of this hearsay evidence, and its allegedly wrongful admission became the fifth of the heads of appeal I have listed. However, it was plainly admissible under s 64(3) of the Evidence Act 1995, nor do I think that in the circumstances it could be said that the trial judge was wrong in refusing to exercise in the defendant’s favour any of the discretions given to the court by ss 135 and 136 of that Act.

13. At the trial, there were three witnesses in particular upon whom the defendant relied to counter the evidence in the plaintiff’s case about the way in which he came to fall upon the track. The first of these was the train driver, Mr Dowman. His evidence was both oral and by two statements (Ex D13 made on the night of the accident (Blue AB 279 and Ex D14 (Blue AB 280) made on 14 September 1995).

14. The first of the statements came into existence when a police officer spoke to Mr Dowman, and recorded in his notebook that Mr Dowman said:

    “... I then departed. I observed this guy close to fence as he approached train, he took a right turn and jumped in front of me.” (Blue AB 279)

15. In his September statement Mr Dowman said he had noticed the plaintiff walk past the leading car along the platform ahead of the train; he (Mr Dowman) had then sounded his train whistle, released the train brakes, applied power and proceeded to work the train towards the next station; as the train drew near the plaintiff, “he suddenly without warning jumped in front of my train into the four foot [that is between the rails]”. Mr Dowman then applied the emergency brakes, saw the plaintiff pass under the leading carriage “before coming to a stand, approximately half a car past the point of impact”. After taking all the necessary steps to deal with the emergency, Mr Dowman waited for a relief driver to arrive and then “went home in a state of complete shock” due to which he was given a medical certificate for one week off work.

16. In his evidence in chief at the trial, Mr Dowman repeated the account he had given in his statement, to the point where he released the brakes and started to power up. He then continued:

    “As we were departing, we got down towards the six car mark, the gentleman was walking down the platform, suddenly turned right, took two steps and jumped, or appeared to jump, in front of the train. I applied the ... brake ... We came to a stand about half a car past.” (Black AB 201)

17. In cross-examination Mr Dowman was asked to go again over his memory of what he saw when the plaintiff went from the platform to the track. He said:

    “... he turned right, took what appeared to be two steps then jumped into the what we call four foot.

    Q. When you say jumped, can I suggest this to you sir that you saw him walking along, same direction you were going?
    A. Uh hmm.

    Q. He turned in a clockwise direction?
    A. Yes.

    Q. So that he was facing towards the track?
    A. That’s correct.

    Q. He appeared to you to jump?
    A. That’s what he appeared to do, yes.

    Q. And what you saw I suggest to you could just as easily have been a man who was - who’d lost his step, or had lost his footing?
    A. I don’t know what his intentions were.

    Q. And as a result of that, fell onto the track?
    A. I don’t know, I couldn’t say. He appeared to jump.

    Q. But that is certainly an explanation of what you saw isn’t it?
    A. It might be.

    NO RE-EXAMINATION.” (Black AB 206)

18. With Mr Dowman in the driver’s compartment at the time of the accident was another train driver, travelling as a passenger, Mr P. Goulding. He made no written statement about the accident either in 1995 or at any time until July 1998 (the first day of the trial was 27 July 1998). His account in his evidence in chief at the trial was similar to Mr Dowman’s. His description of how the plaintiff got on to the track was as follows:

    “The plaintiff then took two steps towards the edge of the platform and a third step off the platform on to the tracks and laid down.” (Black AB 195)

19. The trial judge asked Mr Goulding how far the train had travelled from the time it started to the time it stopped, to which he answered “About 30 metres” (Black AB 197).

20. At the end of his cross-examination Mr Goulding gave the following evidence:

    “Q. I suggest to you that what you saw was consistent with a man who lost his balance and fell in front of the train?
    A. Not from where I as sitting, no.

    Q. When he lay - you said he lay down on the track?
    A. Yes.

    Q. That I suggest to you is consistent with his having laid down on the track to try and avoid being struck? That’d be right wouldn’t it?
    A. I couldn’t say.

    NO RE-EXAMINATION” (Black AB 199)

21. The third witness relied on by the defendant at the trial for an account of how the plaintiff got on to the track was Mr A. Kassa, the guard whose post was in the guard’s compartment at the rear of the fourth and last carriage of the train. (The carriages were twenty metres long, so that Mr Kassa was at least eighty metres away from the plaintiff when he moved from the platform to the tracks.)

22. In a statement made to the defendant’s central service control superintendent about two weeks after the accident Mr Kassa said that he had seen the plaintiff walking along the platform approximately two metres from the platform edge and that he “turned quickly and taking two steps he jumped in front of the train and disappeared” (Blue AB 277).

23. In his evidence at the trial Mr Kassa said he saw the plaintiff up at the head of the train on the platform and that “... he took about two steps to the right towards the train and disappeared from my sight” (Black AB 185-6).

24. It was on the basis of the evidence given by Messrs Bowman, Goulding and Kassa that the trial judge was asked to reject the plaintiff’s account of how he fell. The trial judge, however, said he found the plaintiff to be “a particularly frank and honest, indeed, pragmatic witness” (Red AB 15) and he accepted his account of his fall to the tracks. He further expressed the opinion that the evidence of the witnesses relied upon by the defendant was not basically inconsistent with that of the plaintiff but an account of the same events viewed and remembered somewhat differently.

25. In the defendant’s appeal in this court, it was submitted that the trial judge was wrong in the view he had taken of the facts concerning the plaintiff’s getting on to the tracks. I do not think this submission can succeed. It seems to me that there was ample evidence before the trial judge upon which he could properly reach the factual conclusion which he did. Even if, from a reading of the appeal papers, my own view about the facts were different, (which it is not) the trial judge’s findings now challenged by the defendant fall into the category with which an appellate court should not interfere: Devries v Australian National Railways Commission (1993) 177 CLR 472; State Rail Authority of NSW v Earthline Constructions Pty Ltd (1999) 73 ALJR 306. The findings contested by the defendant were in my opinion well within the area of fact finding which was the province of the trial judge and I do not see any sign of the kind of error the defendant would have to demonstrate before this court would interfere with the judge’s findings.

26. Another factual matter concerning the plaintiff’s fall on to the tracks, disputed by the defendant in the appeal, was the trial judge’s finding about which part of the platform it was that the plaintiff fell from. Expert evidence had been put before the trial judge to the effect that a particular part of the platform, from which the expert had been instructed the plaintiff fell, was unsafe. The trial judge concluded that the part of the platform the subject of the expert’s evidence was not the part of the platform from which the plaintiff fell. He reached this conclusion on the basis of the evidence of one of the defendant’s witnesses, Mr Aliendi, who at the time of the accident had been the defendant’s service control superintendent for the area which included Glenfield Station.

27. Mr Aliendi was called to Glenfield Station immediately after the accident. When he got there, the plaintiff was still lying alongside the train which was in the position in which it had stopped after hitting him. Mr Aliendi noted a number of details about the accident in his notebook while at the scene. The page of the notebook became Exhibit D10 (Blue AB 270). On one line he noted “41-960KM   41-963”. He explained in his evidence that “41-960KM” was where the plaintiff was struck and “41-963” was where he was lying. Mr Aliendi called these numbers “kilometrages”. He said that there were a number of stanchions holding up overhead power lines at the station and that there was a kilometrage number on each stanchion, recording the number of kilometres that stanchion was distant from Central Station, Sydney. He said that there had been a stanchion “just very close by” where the accident had happened. Very shortly before the trial, and in preparation for it, Mr Aliendi had gone to Platform 3 and had caused a number of photographs to be taken there. One was of himself standing near the edge of the platform at a point which he said he fixed by reference to the kilometrages he had noted on the evening of the accident.

28. This photograph, MFI 6, became part of Exhibit D3 (Blue AB 257) and became the basis for a step essential to the trial judge’s conclusion. He accepted Mr Aliendi’s evidence as the best evidence of where the accident happened. Mr Aliendi had also given evidence that the condition of the platform at the time when MFI 6 was taken was “pretty much” as it had been at the time of the accident (Black AB 162). He also agreed that the photograph showed about a quarter of an inch difference between the height of the bitumen and the concrete at a point a little north from where he was standing. He also accepted that some persons could trip and lose balance because of the difference in height (Black AB 211). The trial judge commented on this evidence, saying that on his viewing of the photograph he thought the difference in height referred to by Mr Aliendi was more in the order of six tenths of an inch than Mr Aliendi’s quarter of an inch. It was on the basis of the photograph and Mr Aliendi’s evidence about it that the trial judge found that where the plaintiff fell a ridge had been present at the joint between the concrete edge and the bitumen surface (Red AB 18).

29. This aspect of his Honour’s reasoning became the subject of the most sustained attack in the defendant’s submissions. It was said that the photograph did not justify the judge’s finding that at the point where Mr Aliendi was standing there was a difference in height of six tenths of an inch between the concrete and the bitumen. It was also said that the plaintiff had not established where he fell, and on that account alone, his case must fail.

1. To my mind, it was clearly open to the trial judge to take the view of the height of the ridge which he did. Alternatively, if his six tenths of an inch estimate was too high, it nevertheless seems to me quite clear that he was entitled to find, taking his general acceptance of the plaintiff’s evidence together with his view of the photograph, that there was sufficient of a ridge there to have caused the plaintiff to fall after stumbling on it. In substance, the trial judge’s factual finding was in my opinion well within his scope as the judicial officer with the primary function of making findings of fact in the litigation.

2. There is a further basis for not interfering with this central finding of fact of the judge. Although a number of photographs of Glenfield Station were in evidence, showing a number of different views of it, the stanchions from which Mr Aliendi had taken the kilometrages recorded in his notebook were never identified. It seems unlikely that the plaintiff fell exactly opposite one stanchion and came to rest exactly opposite the other. I do not think the acceptance by the trial judge of Mr Aliendi’s evidence meant that he accepted that his position in the photograph must show exactly the spot where the plaintiff fell. It seems to me, accepting Mr Aliendi’s evidence in full, that the spot where he is standing in the photograph can only be accurate within a tolerance of something like three metres to the north or the south. Bearing that in mind, along with the trial judge’s acceptance of the plaintiff’s evidence that he had tripped where the bitumen was lower than the concrete (and assuming also that in light of Mr Aliendi’s evidence the trial judge had not accepted the plaintiff’s estimate of three inches) I do not see any basis for interfering with the trial judge’s finding of fact.

3. In reaching his conclusions the trial judge did not deal in detail with the evidence relied upon by the defendant at the hearing but in my opinion quite sufficiently indicated why he did not draw from it the conclusions contended for by the defendant.

4. For the reasons I have so far given I think the defendant’s appeal on the matters falling under heads 1 and 2 of the seven earlier listed, fails.

5. As to head 3, that the trial judge found in the plaintiff’s favour on a case different from that put forward on his behalf, it seems to me that the basis of the trial judge’s decision was fully open to him on the materials before him and that it involved issues which had been fully contested by the defendant before him. I see no reason why he should not have proceeded in the way that he did.

6. Head 4 concerned evidence which had been given about incidents that had happened involving the plaintiff and his relatives in the course of their train travel from Cabramatta to Glenfield. Witnesses outside the family group gave varying accounts of different aspects of these incidents, which on the whole, were contested by the various family members. The judge took the view that the incidents themselves had nothing to do with the plaintiff’s claim, and in this, with respect, he was obviously right. He must also have formed the view that to sift through the different accounts of the incidents in order to decide upon the credibility of the various witnesses in the plaintiff’s case would not be of particular assistance to him in deciding whether the plaintiff’s account of his fall and injury should be accepted. This seems to me to have been a view quite open to him. His approach does not seem to me in any way to vitiate his fact finding on the essentials of the case.

7. As to Head 5, (wrongful admission of evidence), I do not think I need add to what I have already said in par 12. The defendant’s submission, in my opinion, fails.

8. Head 6 raised the question of contributory negligence. There was some debate in the appeal on the question whether, since the trial judge appeared to have regarded the defendant’s duty as arising from contract and not from tort, the defendant could argue contributory negligence in the appeal. For the defendant it was submitted that because of an agreement allegedly reached at the trial, the defendant must in fairness be allowed to raise the question of contributory negligence, notwithstanding what the law would otherwise be.

9. It does not seem to me to be necessary to decide upon the availability of contributory negligence to the defendant. The trial judge considered the matter and gave reasons which, in light of the way he decided the question of the defendant’s liability, seem to me to be perfectly sound, for concluding that the plaintiff had not been guilty of any contributory negligence. I would not interfere with his conclusion on this aspect of the matter.

10. Head 7 raised the question whether the trial judge had sufficiently explained his reasons for reaching his conclusions in favour of the plaintiff. On my reading of his two sets of reasons, they cause no difficulty in understanding the line of thought which led him to decide the defendant was liable to the plaintiff. It does not matter if parts of the reasoning are brief, if it is clear what the reasoning is. The trial judge indicated why he did not think it was plausible that the plaintiff, when he got on to the tracks, had either been attempting to kill himself or to cross the tracks in front of the train. He indicated how he had taken the evidence of the various witnesses into account in reaching that conclusion.

11. In my opinion, this head of the defendant’s appeal also fails.

12. My conclusion therefore is that the trial judge’s finding of liability against the defendant should not be disturbed.

13. This leaves the question of damages.

14. The figure for damages was arrived at by the trial judge by reference to five elements which he itemised as follows:

    (a)      Non economic loss

    The trial judge allowed 65% of a most serious case    $168,350.00

    (b)      Past out-of-pocket expenses   $      552.60
    (c)       Future out-of-pocket expenses  

    Prosthesis and replacements

    Initial purchase  $  30,000.00

    Replacements at 3 year intervals from age

    36 to age 76   $131,047.00

    Training and future operation expenses  $  10,000.00

    (d)      Past wage loss  $  25,904.26
    (e)      Future wage loss  $172,379.00

    TOTAL  $538,232.86

15. The plaintiff left school on his fifteenth birthday and was aged thirty at the time of the accident. He was relatively unskilled. He had a history of periods of employment and periods when he lived on unemployment benefits. If the question of damages were looked at simply globally, I would find it difficult to say that the amount he was awarded by the trial judge was excessive. This is my intuitive reaction to the plaintiff’s situation based on my general awareness of current general ideas of fairness and moderation, this awareness being a product of my general experience of a great many damages appeals over many years, including those in more recent years which involve “capping” provisions. If it were permissible to do so, I would dismiss the defendant’s appeal against the amount of damages awarded on this overall basis. However, as I am not sure that such an approach is open to an intermediate appellate court today, I will follow what now seems to be regarded as the orthodox method, following the decline of the use of juries in personal injuries cases.

16. In the course of that decline, the practice has arisen of judges at first instance dealing separately with the individual ingredients going to the assessment of the overall figure of damages in particular cases and giving detailed reasons for their conclusions in regard to each ingredient. Then, on appeal the practice has become to examine the reasons given for each ingredient. In many appeals, although not all, this is a waste of time, because the eventual result reached by the trial judge is clearly within appropriate limits, even if errors of reasoning in regard to individual ingredients may have happened. Nevertheless, the practice seems to have given rise to what has become the duty of intermediate appellate courts to examine those ingredients of a damages award which an appellant complains of in order to see whether the court should set aside the final figure arrived at by the judge.

17. In the present case item (a) above was challenged. It was submitted it should be reduced to $130,000. The reason given by the trial judge for the figure he arrived at was that he thought the loss of the dominant arm in a plaintiff involved solely in labouring type occupations amounted to 65% of a most serious case. This does not seem to me to be an unreasonable assessment. The judge’s reasons, although brief, seem to me to be sound. Different minds might reasonably arrive at somewhat different assessments, but in my opinion that arrived at by the judge can not be said to have been excessive.

18. (I should note that the case was conducted at trial and in this court on the basis that the awarding of damages was governed by Part 6 of the Motor Accidents Act 1988 and that no question was raised by either party about the maximum amount the trial judge used for his calculation. My consideration of this item has been limited to the question whether the trial judge erred in assessing the plaintiff at 65% of a most extreme case.)

19. Item (b) was not contested.

20. Item (c) was submitted to be entirely wrong. It was submitted that nothing should be allowed for the cost of future prostheses for the plaintiff’s lost arm. Alternatively it was said that only the cost of the first prosthesis, $30,000, should be allowed. These submissions were based on propositions which had been put to the trial judge and repeated in this court, along the lines that on the evidence it was unlikely there would ever be any successful prosthesis available to the plaintiff who had indicated that he was not interested in using one which was merely cosmetic.

21. The trial judge explained his reasons for rejecting the defendant’s submissions quite clearly. He was of the view that it was likely that with the continuing improvement of prostheses, a myoelectric prosthesis would be successful. He then said:

    “... thus I have allowed the cost of a Myoelectric arm at $30,000.00 with replacements at 3 year intervals to age 76. The Plaintiff is presently 33 years of age and the first replacement will be due at around age 36. In addition to the first sum of $30,000 for the initial prosthesis I allow 430,00 each successive 3 years I assume this is the transcription of “I allow for 30,000 each successive 3 years”. or $194 per week discounted at 5%. I have further discounted this net present sum by 10% being a figure between 0% and 13.6%. The replacement cost will not be actually incurred on a weekly basis as is assumed by the standard deferral tables. The Plaintiff will incur this expenses 3 yearly. The approach I have taken slightly favours the Defendant however I consider it a reasonable approach in all the circumstances. I have further reduced this sum by 20% representing a fair balance between the possibility that the prosthesis may eventually be totally unsuccessful but keeping in mind the probability of future medical advancement in this area.

    In doing this I have made a number of assumptions firstly, that medical science is improving rather than remaining stagnant and that the prospects of the Plaintiff receiving a workable hand are good and secondly, that having a working arm and hand will assist the plaintiff to a small extent in seeking employment, I say to a small extent because the reality is that in a labouring type occupation even with a fully functioning hand the Plaintiff’s chances would be only slightly increased but even if it did not provide this slight advantage, it would greatly improve his ability to enjoy life and his daily activities and, finally that it is reasonable for him to be afforded such assistance.

    It seems to me to be an absurd proposition to allow the Plaintiff only the initial cost of such an arm as he would have no prospects of purchasing replacements as they became necessary and his prospects of re-employment would be very greatly diminished if not entirely extinguished.”

22. This passage seems to me to give reasonable explanations for not accepting the defendant’s submissions about the prostheses and consequentially reasonable answers to the same submissions repeated, even if more elaborately, in this court.

23. As to items (d) and (e), the trial judge gave brief but to my mind sufficient reasons for his conclusions. I do not think that any of the defendant’s criticisms in the appeal justifies interfering with either the method adopted by the trial judge in regard to the two items or the way in which he calculated the resulting figures. Nor do I think the court would be justified in interfering with the total of the two items.

24. The result is that, in my view, no error has been shown in the trial judge’s assessment of damages. If I should be wrong in this, the case would nevertheless seem to be one in which the court should not order a new trial. Part 51 r 23 of the Supreme Court Rules provides that:

    “(1) The Court of Appeal shall not order a new trial:

    (a)on the ground of ... error of law;

    (b)on the ground of the improper admission or rejection of evidence;

    (c)...

    (d)      on any other ground,

    unless it appears to the Court of Appeal that some substantial wrong or miscarriage has been thereby occasioned.”

25. It is implicit in what I said earlier in these reasons that I do not think any substantial wrong or miscarriage has been occasioned by the trial judge’s assessment of damages.

26. The parties requested the court, if it concluded the trial judge’s assessment of damages should be set aside, to reassess for itself what the figure should be. As indicated, I do not think the court should interfere, but if I myself should be in error in thinking the trial judge did not make any appellable mistakes in his assessment of damages, so that this court were itself to reassess the damages, I have no doubt that I would arrive at a judgment figure little different from that under appeal.

27. In my opinion the appeal should be dismissed with costs.

28. HEYDON JA:  I agree with Priestley JA.

29. FOSTER AJA: I agree with Priestley JA.

**********

LAST UPDATED:    14/09/2000