Stove v Hall
[2008] ACTCA 21
•19 December 2008
JEFFREY JOHN STOVE & ANOR v MICHAEL SHEANE HALL
[2008] ACTCA 21 (19 December 2008)
TORTS – negligence – contributory negligence – collision between respondent’s motor vehicle and second appellant’s truck in roundabout – challenge to trial judge’s finding as to lane markings – whether insufficient weight given to sign on truck warning not to overtake – whether speed of vehicle challenged in cross-examination – whether truck’s movement into vehicle’s lane unavoidable in view of size of truck
Held: trial judge did not err in concluding respondent not guilty of contributory negligence.
TORTS – negligence – awards for economic loss – whether trial judge awarded damages for loss of earning capacity without considering whether diminution in earning capacity was or may be productive of financial loss – whether trial judge chose incorrect starting figure or made insufficient discount having regard to work history of respondent
Held: trial judge’s award for past economic loss manifestly excessive – trial judge’s award for future economic loss not manifestly excessive.
TORTS – negligence – trial judge’s reasons for rejection of medical evidence – whether sufficient
Held: trial judge’s reasons sufficient.
Supreme Court Act 1933 (ACT) Pt 2A, s 37N, s 37O
Abalos v Australian Postal Commission (1990) 171 CLR 167
Boyd v Leftwich (1982) 43 ALR 280
Chakravarti v Advertiser Newspapers Ltd (1998) 72 SASR 361
Cullen v Trappell (1980) 146 CLR 1
Devries v Australian National Railways Commission (1993) 177 CLR 472
Fox v Percy (2003) 214 CLR 118
Gould v Vaggelas (1985) 157 CLR 271
Graham v Baker (1961) 106 CLR 340
Hall v Stove [2007] ACTSC 75
Jones v Hyde (1989) 63 ALJR 349; 85 ALR 23
Medlin v The State Government Insurance Commission (1995) 182 CLR 1
Purcell v Watson (1979) 26 ALR 235
Warren v Coombes (1979) 142 CLR 531
Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 37 - 2007
No. SC 340 of 2003
Judges: Higgins CJ, Penfold and Besanko JJ
Court of Appeal of the Australian Capital Territory
Date: 19 December 2008
IN THE SUPREME COURT OF THE ) No. ACTCA 37 - 2007
) No. SC 340 of 2003
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: JEFFREY JOHN STOVE
First Appellant
LLEWELLYN ROBB
Second Appellant
AND: MICHAEL SHEANE HALL
Respondent
ORDER
Judges: Higgins CJ, Penfold and Besanko JJ
Date: 19 December 2008
Place: Canberra
THE COURT ORDERS THAT:
The appeal be allowed.
The orders made by the trial judge be set aside and in lieu thereof (and with effect from the date of the trial judge’s judgment) there be orders as follows:
(1) Judgment be entered for the plaintiff against the first defendant in the sum of $546,690.00.
(2) Judgment be entered for the plaintiff against the second defendant in the sum of $140,972.00.
IN THE SUPREME COURT OF THE ) No. ACTCA 37 - 2007
) No. SC 340 of 2003
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:JEFFREY JOHN STOVE
First Appellant
LLEWELLYN ROBB
Second Appellant
AND: MICHAEL SHEANE HALL
Respondent
Judges: Higgins CJ, Penfold and Besanko JJ
Date: 19 December 2008
Place: Canberra
REASONS FOR JUDGMENT
THE COURT:
Mr Michael Hall, the plaintiff in an action in this Court, and the respondent to this appeal, was injured in two motor vehicle accidents. The first accident occurred on 5 April 2000 when Mr Jeffrey Stove, the first defendant in the action and the first appellant to this appeal, struck a tree while reversing a truck in a driveway. The tree fell on the bonnet of a motor vehicle in which the respondent was a passenger and he suffered injuries as a result. The second accident occurred on 20 July 2001 when Mr Llewellyn Robb, the second defendant in the action, and the second appellant to this appeal, was driving a truck around a roundabout. The respondent, who was driving a motor vehicle a short distance behind the truck, collided with the rear of the truck in the roundabout. He suffered injuries as a result of the collision.
The respondent brought one action in this Court claiming damages from the first appellant and the second appellant respectively. The appellants were represented by the same firm of solicitors and counsel.
In relation to the first accident, the first appellant admitted liability for the accident, and the respondent’s claim against him proceeded as an assessment of damages.
In relation to the second accident, the second appellant denied liability and, in the alternative, alleged that the respondent had been guilty of contributory negligence. The trial judge found that the second appellant had been negligent and that the respondent had not been guilty of contributory negligence. The respondent was awarded 100 per cent of the damages caused by the second accident. On the appeal to this Court the second appellant does not challenge the trial judge’s finding that he had been negligent, but he does challenge the trial judge’s finding that the respondent had not been guilty of contributory negligence.
The respondent was awarded damages of $600,534 in relation to the first accident and damages of $154,160 in relation to the second accident: Hall v Stove [2007] ACTSC 75. The trial judge’s awards included allowances for pain and suffering, medical expenses, domestic assistance, vocational employment assessment and education and employment (in relation to the first accident only), and economic loss. As to past economic loss, the trial judge allowed a total figure of $201,094 attributing $161,094 to the first accident and $40,000 to the second accident. As to future economic loss, he allowed a total figure of $237,282 attributing $190,000 to the first accident and $47,282 to the second accident. On the appeal to this Court, the appellants challenge the trial judge’s award for economic loss.
The appellants also challenge the trial judge’s orders on the ground that he did not give adequate reasons for rejecting the medical evidence that they put forward.
The issues on the appeal are relatively confined and may be summarised as follows:
1. Did the trial judge err in failing to find the respondent guilty of contributory negligence in relation to the second accident?
2. Was the trial judge’s award for past economic loss and future economic loss in relation to the first and second accidents manifestly excessive?
3. Did the trial judge err in failing to give adequate reasons for rejecting the medical evidence put forward by the appellants?
The proper approach to the appeal
The powers and functions of this Court on an appeal are set out in Pt 2A of the Supreme Court Act 1933 (ACT). Section 37N deals with the evidence this Court may have regard to in hearing an appeal and that evidence includes the evidence given in the proceeding out of which the appeal arises, inferences of fact drawn from that evidence by the Court of Appeal and such further evidence as the Court of Appeal may receive. No application to call further evidence was made. Section 37O sets out the orders this Court may make on an appeal. It was accepted by the parties, correctly we think, that the appeal to this Court is by way of a rehearing.
In Fox v Percy (2003) 214 CLR 118 the High Court considered the proper approach of an appellate court on an appeal by way of a rehearing. For present purposes, it is sufficient to mention two principles identified by Gleeson CJ, Gummow and Kirby JJ in their joint reasons. First, although there is a need for appellate respect for the advantages of trial judges, and especially where their decisions might be affected by their impression about the credibility of witnesses whom the trial judge sees but the appellate court does not (Jones v Hyde (1989) 63 ALJR 349; 85 ALR 23; Abalos v Australian Postal Commission (1990) 171 CLR 167; Devries v Australian National Railways Commission (1993) 177 CLR 472), that need does not derogate from the proper performance of the appellate function. If, after making proper allowance for the advantages enjoyed by the trial judge, error is shown, then the appeal court is “authorised, and obliged, to discharge [its] appellate duties in accordance with the statute” (see 127-128 [27]-[29]). Secondly, their Honours confirmed (at 126-127 [25]) the rule or principle stated by Gibbs ACJ, Jacobs and Murphy JJ in Warren v Coombes (1979) 142 CLR 531 at 551 as follows:
Shortly expressed, the established principles are, we think, that in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it. These principles, we venture to think, are not only sound in law, but beneficial in their operation.
We turn now to address the issues raised on the appeal.
1. Did the trial judge err in failing to find the respondent guilty of contributory negligence in relation to the second accident?
The respondent’s case at trial was that he was travelling in his motor vehicle behind a truck driven by the second appellant in a westerly direction along Fairbairn Avenue and approaching the intersection of that road and Northcote Drive. As the truck entered the roundabout at the intersection it moved to the left and slowed down. The respondent moved into the right-hand lane and continued to drive forward. As the respondent did so, the truck came across into his lane, at which time the truck’s rear wheels came into contact with the front left-hand guard of the respondent’s motor vehicle. The respondent said that his vehicle was “bounced through the air” and onto the edge of the roundabout. He said that he braked heavily when he saw the truck veer into his lane.
The second appellant’s case at trial was that the truck he was driving was a large bogey drive type truck about 24 to 25 metres long. In his evidence the second appellant referred to the truck as “a large bogey drive rigid”. He said that, for traffic travelling in a westerly direction, Fairbairn Avenue divided into two lanes at a point shortly before the roundabout, and that he kept to the left-hand side of the roadway as he approached and drove into the roundabout. At a point when he was about half-way through the roundabout he heard the sound of a horn and looked in his rear vision mirror. He saw the respondent’s motor vehicle strike the rear right-hand wheel of the truck. He accepted that he had cut into the right-hand lane and that he had not looked in his rear vision mirror prior to doing so. He had not been aware of the respondent’s motor vehicle before he heard the sound of the horn.
The trial judge found the respondent’s account of the accident to be “essentially” accurate. On the other hand, he found the second appellant’s account “clearly tinged by defensiveness” and “relatively unconvincing”. He said he “generally preferred” the respondent’s account of the accident.
The trial judge found that the incursion by the truck into the right-hand lane was more than slight. He found that this was not a case where encroachment by the truck into the right-hand lane was unavoidable. He said that, even if it had been unavoidable, that fact would not have absolved the second appellant of his duty to use reasonable care to avoid damage to other road users. The second appellant could have looked in his rear vision mirror and, if necessary, braked to let any traffic in the adjacent lane pass before proceeding forward. The trial judge reached the following conclusion:
I find that the second defendant breached the duty of care that he had owed to the plaintiff by permitting his truck to cut into the adjoining lane without warning and without looking in his rear vision mirror to ascertain that there was no other vehicle in that lane whose occupants might be endangered by the manoeuvre.
The trial judge then turned to consider whether the respondent had been guilty of contributory negligence. In this context he made two important findings. First, he found that at the time of the accident the respondent was travelling wholly within his lane and at a speed substantially below the speed limit. The respondent thought that the truck, which was moving slowly, had moved to the left to enable him to pass. The truck did not present an obvious danger to the respondent. Secondly, he found that the truck driven by the second appellant moved “partially” into the respondent’s lane. The respondent reacted by sounding his horn and braking heavily; however, he could not avoid the collision. The trial judge said that, in view of those findings, there was no basis for finding the respondent guilty of contributory negligence.
The second appellant submitted that the trial judge should have made a finding of contributory negligence. He made a number of particular points addressed, we think, to establishing what he said was a clear case of contributory negligence. First, although he accepted that the roundabout for vehicles travelling in a westerly direction along Fairbairn Avenue consisted of two lanes, he submitted the correct finding was that there were no lane markings on the roadway and that the trial judge erred to the extent that he found otherwise. Secondly, the second appellant submitted that the truck had a sign at the rear stating “Do not overtake turning vehicle” and that the trial judge erred in not putting any weight on this important fact. Thirdly, the second appellant submitted the trial judge erred in finding that the respondent’s speed at the time of the accident had not been challenged in cross-examination. Fourthly, he submitted that the correct finding was that the truck’s movement into the right lane was not deliberate and was probably a function of the truck’s length and that the trial judge erred in finding to the contrary.
The second appellant asked this Court to find that the respondent’s responsibility for the second accident should be assessed at 50 per cent. The second appellant made an alternative submission. He submitted that even if the particular points he made were rejected, there should nevertheless, on the findings made by the trial judge, have been a finding of contributory negligence against the respondent.
We will start with the particular points made by the second appellant. The trial judge did not make an express finding that there were markings on the roadway in the roundabout delineating two lanes. It seems clear from the evidence of both the respondent and the second appellant that, for a short distance before the roundabout, Fairbairn Avenue, for vehicles travelling in a westerly direction, was divided into two lanes which were marked on the roadway. The trial judge’s reasons refer to the second appellant’s truck encroaching into the other lane, and it seems clear that, marked or not, there was room for two vehicles to travel side by side through the roundabout. The respondent gave evidence that the lanes were marked on the roadway, but that the markings were faded. The second appellant gave evidence that there were no markings on the roadway. As we have already said, the trial judge “generally preferred” the respondent’s account of the accident to that of the second appellant.
In those circumstances, if any finding on the issue were to be made by this Court it would be that the “lanes” in the roundabout were marked on the roadway. We are disposed to think that the trial judge did not make a finding on this issue because he did not think it to be of any particular significance. We are inclined to agree with the trial judge that the issue was of no particular significance, having regard to the fact that there were clearly marked lanes on the roadway as the vehicles entered the roundabout and there seemed to be no dispute at trial that two motor vehicles travelling in a westerly direction through the roundabout could do so travelling side by side.
The second appellant gave evidence that there was a sign, “Do not overtake turning vehicle”, on the back of the truck. The trial judge did not make a finding about the sign and appears not to have regarded the matter as being one of any particular significance. We agree with the trial judge that the issue is not of particular significance. The truck was not turning in the sense suggested by the sign, and the sign does not add anything to what would have been apparent in any event, namely, that the second appellant was driving a long vehicle.
As to the respondent’s speed at the time of the accident, the trial judge made the following observations in the course of his reasons:
In response to a suggestion that he [the respondent] could have avoided the collision if he had been driving more slowly, he insisted that he had been driving at a responsible speed.
…
The plaintiff was apparently driving wholly within his lane and at a speed substantially below the speed limit … .
…
Whilst he intended to overtake the truck in doing so, he said that he had been travelling at a reasonable speed and this assertion was not challenged in cross examination.
Those observations of the trial judge are accurate. In one sense, suggesting that the accident would not have happened if one party had been travelling at a lesser speed is challenging the reasonableness of that party’s speed; in another sense, it is not a challenge because many accidents would not occur if one of the parties was travelling at a lesser speed. Having regard to the trial judge’s reasons as a whole, we are satisfied that the trial judge understood the evidence before him and that it was open to him to find that the respondent’s speed was not excessive in the circumstances.
The trial judge expressly found that the second appellant could have avoided moving into the respondent’s lane. He said that whilst he had evidence of the length of the truck, a finding that the second appellant’s movement into the respondent’s lane was unavoidable could only be made if there was also evidence of the width of the lane and the radius of the curve. There was no evidence about those matters before the trial judge. In those circumstances, we do not think there is any basis upon which this Court should interfere with the conclusions of the trial judge.
The particular points made by the second appellant in support of the claim of contributory negligence must be rejected.
The second appellant’s alternative submission was that, even accepting all of the trial judge’s findings as to the circumstances of the accident, the respondent was guilty of contributory negligence. There is a good deal of force in this submission. The second appellant’s truck was a long truck and the respondent was attempting to overtake it in circumstances in which it was clear that the truck was deviating from a straight path. However, having considered the matter carefully, and not without some hesitation, we do not think it would be appropriate to interfere with the trial judge’s conclusion. It is well-established that the onus of establishing contributory negligence is on the defendant to an action (Purcell v Watson (1979) 26 ALR 235; Boyd v Leftwich (1982) 43 ALR 280). It seems to us that, in the absence of the type of evidence identified by the trial judge (see [23] above) and bearing in mind the trial judge’s conclusion, it would not be appropriate for this Court to conclude on appeal that the respondent had exposed himself to a foreseeable risk of injury by proceeding to overtake the truck in the roundabout.
The trial judge did not err in concluding that the respondent had not been guilty of contributory negligence.
2. Were the trial judge’s awards for past economic loss and future economic loss in relation to the first and second accidents manifestly excessive?
In the context of the respondent’s claim for economic loss, the trial judge made the following important findings.
1. In the first accident, the respondent suffered injuries to his right ankle and hip, and to his neck and back. In the second accident the respondent aggravated the injuries to his right hip and neck, and sustained injuries to his right knee, his elbow and his ribs. The respondent had ongoing pain in his right hip and knee and in his back. The respondent suffered from chronic and severe post-traumatic stress as a result of the accidents.
2. The accidents, and the injuries the respondent suffered in them, have had a dramatic effect on the respondent’s physical and emotional wellbeing. He has been left with a legacy of pain and permanent psychological problems. These problems were and are caused “predominantly” or “primarily” by the first accident, and aggravated to some extent by the second accident. In another part of his reasons, the trial judge refers to the second accident causing a “significant aggravation” of the respondent’s pain and emotional distress. The trial judge said he was satisfied it may have some lingering, though relatively minor, effect upon the respondent’s future physical and mental condition. The trial judge said that it is likely the respondent will suffer significantly for many years and, perhaps, permanently. The respondent is unemployable and that is likely to be permanent. In terms of the respondent’s pre-trial loss of earning capacity, he was substantially unemployable as a result of the first accident, but the trial judge said that he could not exclude the possibility that the respondent would have returned to the workforce on a limited basis had the second accident not occurred.
3. Having regard to the respondent’s work history, his injuries and their effect on his earning capacity, the trial judge made the following awards.
(i) The trial judge awarded the respondent a sum of $201,094 for past economic loss, attributing $161,094 to the first accident and $40,000 to the second accident. He reached the total sum of $201,094 by taking an amount of $500 net per week, multiplying it by a figure of 390, being the number of weeks in the period between the first accident and judgment, and then applying a discount rate of 25 per cent. The trial judge then added interest of $54,844.
(ii) The trial judge awarded the respondent a sum of $237,282 for future economic loss, attributing $190,000 to the first accident and $47,282 to the second accident. He reached the total sum of $237,282 by taking an amount of $638.40 net per week and applying that to a period of 13 years to age 60 years (the respondent was born on 5 May 1961) with a discount rate of 3 per cent, and then reduced the figure by 35 per cent “to allow for the potential contingencies of life”.
Leaving to one side the appellants’ complaint that the trial judge erred in failing to give adequate reasons for rejecting their medical evidence which, for reasons we will give, we reject, the appellants did not challenge the conclusions set out in points one and two of the preceding paragraph. In essence, their challenge was about how the trial judge went about formulating the figures he should use to assess the respondent’s loss of earning capacity, that is to say, the process described in point three of the preceding paragraph.
Critical to the appellants’ challenge is the respondent’s work history, or lack of it, and it is to that topic that we now turn. Our summary of the respondent’s work history is taken from the findings made by the trial judge.
The respondent was born on 5 May 1961. He left school in 1976 after completing Year 10 and obtaining a New South Wales School Certificate. He then had a number of jobs, working as a general hand, trainee machine operator, leading hand, a trainee crane operator and a steel fixer. At some point in the 1980s the respondent hitchhiked around Australia. The trial judge said that the respondent was unable to provide a comprehensive and sequential account of his working life prior to the first accident.
The trial judge found that the appellant appeared to have generally managed well in the jobs that he subsequently held (that is, after he had hitchhiked around Australia) in various places. For some time in the late 1980s the respondent worked in a wrecking yard in Queanbeyan. In connection with this work, Mr Robert Death, a witness called at the trial, referred to the respondent as an able-bodied person with an easy-going personality. The respondent worked in a caravan park in Albany in Western Australia for about three months and for a farmer in Rocky Gully in Western Australia for a period of three to four months. The respondent then went to Perth. After working for a scrap metal merchant for about six months, the respondent obtained a job as a manager of a firm called “All Holden Motors”. That firm was engaged in motor wrecking and the supply of parts for Holden motor vehicles. It seems that he held that job for about two years and that he earnt between $800 and $1,200 per week, depending on bonuses. Mr Peter Ostell, a witness called at the trial, was the proprietor of the business and he said that the respondent had, in effect, run the business and had done so very successfully. He said that the respondent had been very well physically and had done some remarkable things, like professionally “wrecking” three cars in a day.
In 1993, the respondent worked as a ski technician and, in October 1995, he completed a bar training course. From early 1999 until the date of the first accident the respondent worked as a “roadie” for a firm called “Multi Incorporated Businesses” and later “Corporate Crewing”. His job required him to carry out preparatory work for bands due to play in concerts. The respondent’s group certificates for the years ended 30 June 1999 and 30 June 2000 disclose gross earnings of only $2,274 and $604 respectively. Those certificates showed the respondent’s employer as Corporate Crewing Pty Ltd.
Mr William Pessey, a witness called at the trial, was the manager of Corporate Crewing and he said the respondent would have done work for the firm for which he was not paid. Mr Pessey described the respondent before the first accident and he said that he was a good worker, reliable and capable of managing a crew working on a job.
Of the respondent’s work as a roadie, the trial judge said:
The plaintiff seemed to have enjoyed the work because it brought him into contact with established performers in the music industry but it seems highly unlikely that he would have been content to continue living on such a low income when he had previously worked in a range of occupations and there is no reason to suppose that either full time or further casual jobs would not have been available to him.
The respondent attempted to return to his job with Corporate Crewing about three or four months after the first accident. He could perform only supervisory work and he could not perform any physical work because of the pain it caused.
Approximately four weeks before the second accident the respondent was approached by his brother, Mr Geoffrey Hall, and asked if he would manage a business called “Quick Kerb Quick Pave”. That business involved the supply and installation of continuous concrete garden edging. However, the respondent gave evidence that he could only perform a supervisory role which left him with nothing much to do. The trial judge said that the respondent’s evidence as to whether he would have continued this work, but for the second accident, was “somewhat unclear”. The respondent’s brother, Mr Geoffrey Hall, gave evidence of his observations of his brother’s physical and mental condition before and after the accidents.
It is plain from his reasons that the trial judge not only accepted, but placed a great deal of weight on, the evidence of Mr Death, Mr Pessey and Mr Geoffrey Hall, as to the effects of the two accidents on the respondent.
The trial judge said that an assessment of the respondent’s loss of earnings was “fraught with difficulty”. He noted that the respondent was to be compensated for loss of earning capacity, even if he had not been fully utilising that capacity at the time of the relevant injuries. We have set out above (at [27]) how he proceeded to calculate past and future economic loss.
The appellants’ first submission in relation to past economic loss is that the trial judge erred in law in awarding damages for loss of earning capacity without considering whether the diminution in the respondent’s earning capacity was or may be productive of financial loss. It seems clear from the authorities that an injured party recovers damages for the loss of his or her earning capacity as distinct from the direct recovery of past or future earnings: Medlin v The State Government Insurance Commission (1995) 182 CLR 1 (“Medlin”) at 16 per McHugh J. Nevertheless, before damages may be recovered for the loss or diminution, it must be shown that the loss or diminution is or may be productive of financial loss: Graham v Baker (1961) 106 CLR 340 at 347 per Dixon CJ, Kitto and Taylor JJ; Medlin at 3-4 per Deane, Dawson, Toohey and Gaudron JJ; at 16 per McHugh J.
We do not think that the trial judge focused only on the loss or diminution of the respondent’s earning capacity and failed to consider whether that loss or diminution had been or may be productive of financial loss. In his assessment of the appropriate discount in the case of past economic loss, the trial judge took into account the respondent’s “disjointed” pattern of work prior to the first accident, and it is clear that what the trial judge did was to reduce the damages for periods during which, although the respondent’s earning capacity “remained” diminished, it was not, or was not likely to be, productive of actual financial loss.
The appellants’ alternative submission in relation to past economic loss was that the trial judge erred either in the starting point he chose (that is, $500 net per week), having regard to the respondent’s work history, or in making an insufficient discount having regard to that work history. The appellants handed up to the Court a document showing calculations for past economic loss based on starting net weekly figures of $200 and $400 respectively.
There is no dispute as to the respondent’s level of incapacity. He is unable to work and has been unable to work since the first accident or, at latest, since the second accident. In the case of a claimant with a sound work history and employment at the time of the accident, the calculation of past economic loss is often a relatively simple exercise with no, or only a small, reduction for factors such as unemployment.
This case is different because the respondent did not have a sound work history and was earning only very small amounts of money at the time of the first accident. The respondent’s gross earnings in the financial years ended 30 June 1999 and 30 June 2000 were $2,274 and $604 respectively. That was the finding of the trial judge and we will proceed on that basis, although the appellants suggested a much smaller figure was appropriate for one of the years. Between about 1993 or 1994 and about July 1998 the respondent worked for only short periods of time, totalling a period of perhaps 13 months or so. It is worth remembering that the respondent was 32 years old in 1993 and 37 years old in 1998. It is true that Mr Ostell, who had employed the respondent in the early 1990s, spoke of him in glowing terms and said that if the respondent was fit and able he would employ him again, and that he expected that the respondent would receive between $1,000 and $1,200, but it must be remembered that the respondent had returned to Canberra in 1993 or 1994 and that Mr Ostell was basing his opinion of the respondent’s capacity on the respondent’s performance some years before the first accident. The respondent’s work history was, as the respondent himself put it, “erratic” and, in the period of five years or so before the first accident, was characterised by long periods of unemployment and employment at very low wages.
For his part, the respondent emphasised a number of points. First, he emphasised the difficulty of the task confronting the trial judge. That may be accepted. Secondly, he emphasised the evidence of various witnesses to the effect that the respondent was a good worker before the first accident and the evidence of Mr Ostell summarised above. It is proper to accept that before the accident, the respondent, when working, was a good worker. As far as the evidence of Mr Ostell is concerned we have already referred to the limitations on the use which may be made of that evidence. Finally, the respondent emphasised the finding of the trial judge that it was highly unlikely the respondent would have continued to work for the low wage he earnt in the financial years ended 30 June 1999 and 30 June 2000 respectively, and that there was no reason to suppose that either full-time or casual jobs would not have been available to him. Again, it is proper to accept that finding, but it must be remembered that it is quite general in its terms and must be weighed in the balance with other relevant considerations.
In our opinion, the trial judge’s award for past economic loss is manifestly excessive.
The appellants did not challenge the trial judge’s approach of selecting a figure for net average income per week and then discounting it for periods of unemployment, and the approach is an appropriate one. The respondent’s work history might be reflected in either factor or both factors. We accept that on the facts of this case the trial judge faced a difficult task in selecting a figure for net average income per week and in selecting a percentage by which to discount it. We note that a figure of $500 net per week discounted by 25 per cent results in a notional allowance of $19,500 for the first year after the accident. In our opinion, at least for some years after the first accident, such a figure is manifestly excessive having regard to the respondent’s work history and meagre earnings during the period of five or so years prior to the first accident.
Damages for past economic loss must be reassessed. It is open to us to do so as at the date of the trial judge’s judgment and, in our opinion, that is the appropriate course. The orders of this Court will operate with effect from the date of the trial judge’s judgment (see Gould v Vaggelas (1985) 157 CLR 271 at 274; Chakravarti v Advertiser Newspapers Ltd (1998) 72 SASR 361 at 378-380 per Doyle CJ and Perry J (with whom Williams J agreed)). There is reason to think a low figure for net weekly income and a higher figure for discounts is an appropriate starting figure for the early part of the seven-and-a-half-year period and a higher figure for net weekly income and a lower figure for discounts is an appropriate starting figure for the latter part of the seven-and-a-half year period. One approach is to calculate past economic loss differently for different periods within the seven-and-a-half year period. On the other hand, a similar result may be achieved by allowing a larger amount by way of a discount for unemployment throughout the period. We propose to adopt the latter course, recognising that a degree of imprecision is inevitable. We take a figure of $500 net per week, multiplied by 390 and reduced by 50 per cent. Interest should be calculated on the basis of 5 per cent over a period of seven-and-a-half years. The resulting figure is $134,062 and we attribute $107,250 to the first accident and $26,812 to the second accident. That means the award of damages for the first accident must be reduced by $53,844 and the award of damages for the second accident must be reduced by $13,188.
In our opinion, the trial judge’s award for future economic loss is not manifestly excessive.
The appellants made a similar submission in relation to future economic loss as they had in relation to past economic loss, namely, that the trial judge failed to consider whether the respondent’s reduction in earning capacity may be productive of financial loss. We reject that submission because we have no doubt that the trial judge did consider that fact. He said:
Having regard to the plaintiff’s history, I think it is again appropriate to apply a much larger discount to this figure to allow for the potential contingencies of life.
The trial judge applied a discount of 35 per cent. In Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485 at 497-498, Dawson, Toohey, Gaudron and Gummow JJ said that it was “generally appropriate” to discount for vicissitudes by 15 per cent but that this figure should be “subject to adjustment up or down to take account of the plaintiff’s particular circumstances”. It should also be borne in mind that the assessment of damages for personal injury is an “exercise of judgment and not mere arithmetic”: Cullen v Trappell (1980) 146 CLR 1 at 38.
The appellants’ alternative submission that the award is manifestly excessive having regard to the respondent’s work history must, we think, be rejected. We have reached that conclusion for two reasons. First, the trial judge has taken the calculation of future economic loss only to age 60 years when he might have performed a calculation on the assumption of the respondent otherwise working beyond that date. Secondly, weight should be given in this context to the trial judge’s finding that the respondent would not be content to continue living on the low income he was living on in the period 1998-2000. That finding is set out in [34] above.
Before leaving the topic of future economic loss, a further point made by the appellants should be noted. They submitted that, on the assumptions outlined by the trial judge, he had applied the wrong multiplier and that had resulted in the respondent being over-compensated by a small amount. The respondent countered by pointing out that, having regard to the respondent’s age, the trial judge had reached a figure slightly below the appropriate figure. We are not persuaded that the trial judge erred in the manner suggested by the appellants, but, even if he did, it was not, in the circumstances of this case, an error which warrants the intervention of this Court.
3. Did the trial judge err in failing to give adequate reasons for rejecting the medical evidence put forward by the appellants?
The appellants submitted that the trial judge did not give adequate reasons for rejecting the medical evidence put forward by them. The appellants made relatively brief written submissions in support of this contention but did not say anything in support of the contention in the course of their oral argument. We reject the submission.
In his reasons for judgment, after dealing with liability in relation to the second accident, the trial judge outlined the respondent’s work history before the first accident. He then outlined the immediate effects of the first accident and the evidence of Messrs Pessey, Death and Geoffrey Hall about their observations of the respondent. He said that each of the persons we have mentioned was an impressive witness and that he accepted their evidence. The trial judge then outlined the immediate effects of the second accident. The trial judge discussed the medical evidence put forward by the respective parties. In some instances that evidence was put forward by way of written report and in other instances by way of both written report and oral evidence. His discussion included a discussion of the evidence given by Dr Max Wearne, a consultant orthopaedic surgeon called by the appellants, and Dr Inglis Synott, a psychiatrist called by the appellants. The trial judge discussed the respondent’s evidence as to the effect of the accidents on him and subsequent incidents, including an assault in November 2004 in which the respondent was a victim, a third car accident in January 2005 and a second assault in October 2005 in which the respondent was the perpetrator. The trial judge then made his findings. We think it is fair to say that any doubts the trial judge had about the effects of the accidents on the respondent were dispelled by the non-expert evidence of Messrs Pessey, Death and Geoffrey Hall. The approach taken by the trial judge was open to him on the evidence and we think he made clear the reasons he took the approach he did. In our opinion, there is no substance in the complaint that the trial judge did not give adequate reasons for rejecting the medical evidence put forward by the appellants.
Conclusion
For the reasons we have given, the appeal must be allowed. On our calculations the judgment in relation to the first accident must be reduced by the sum of $53,844, and the judgment in relation to the second accident must be reduced by the sum of $13,188.
The following orders should be made:
1. The appeal be allowed.
2. The orders made by the trial judge be set aside and in lieu thereof (and with effect from the date of the trial judge’s judgment) there be orders as follows:
(1) Judgment be entered for the plaintiff against the first defendant in the sum of $546,690.
(2) Judgment be entered for the plaintiff against the second defendant in the sum of $140,972.
We are disposed to think that the appellants should have only part of their costs of the appeal because, although they have been successful in having the awards reduced by a substantial amount, they have been unsuccessful in relation to two arguments put to the Court. However, we will give the parties the opportunity to make submissions on the question of costs if they wish.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
Associate:
Date: 19 December 2008
Counsel for the Appellants: Mr J E Maconachie QC with Mr P Ryan
Solicitor for the Appellants: Moray & Agnew
Counsel for the Respondent: Mr C T Barry QC with Mr J Davidson
Solicitor for the Respondent: Herring & Associates - Lawyers
Date of hearing: 8 May 2008
Date of judgment: 19 December 2008
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