Tahiraj v Smith

[1992] QCA 162

IN THE COURT OF APPEAL

[1992] QCA 162

SUPREME COURT OF QUEENSLAND

No. 90 of 1991

Before the Court of Appeal

The President
Mr. Justice Pincus JA

Mr. Justice Derrington

BETWEEN:

SOFIA TAHIRAJ

(Plaintiff) Respondent

AND:

KEVIN SMITH

(Defendant) Appellant

JUDGMENT OF THE COURT

Delivered the Twenty-fifth day of June 1992.

MINUTE OF ORDER:
1. Appeal allowed.

2.   Judgment of the court below for $118,633.00 be set aside and in lieu thereof there be judgment for the plaintiff for $98,633.00. Order for costs to stand.

3.    Respondent to pay appellant's costs of the appeal.

CATCHWORDS:

Damages 19 year-old girl (21 at trial). Crush fractures of T4 and T12. Conservative treatment. Pain reducing after 6 months. Then intermittent. Also exacerbation of pre- existing scoliosis symptoms. Chance of need for future operation. Error as to symptoms from prior conditions.

Whether allowance for loss of earning capacity excessive.

General damages $30,000.00.

Counsel:	Williams QC with Egan for the Appellant. North for the Respondent.
Solicitors:	Biggs and Biggs for the Appellant. Kenyons for the Respondent.

Hearing date: 21st May 1992.
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

No. 90 of 1991

BETWEEN:

SOFIA TAHIRAJ

(Plaintiff) Respondent

AND:

KEVIN SMITH

(Defendant) Appellant

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ

The President
Mr. Justice Pincus JA

Mr. Justice Derrington

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ

Judgment of the Court delivered on the Twenty-fifth day of June 1992.

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ

1. APPEAL ALLOWED.

2.   JUDGMENT OF THE COURT BELOW FOR $118,633.00 BE SET ASIDE AND IN LIEU THEREOF THERE BE JUDGMENT FOR THE PLAINTIFF FOR $98,633.00. ORDER FOR COSTS TO STAND.

3.   RESPONDENT TO PAY APPELLANT'S COSTS OF THE APPEAL.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

No. 90 of 1991

BETWEEN:

SOFIA TAHIRAJ

(Plaintiff) Respondent

AND:

KEVIN SMITH

(Defendant) Appellant

JUDGMENT OF THE COURT

Delivered the Twenty-fifth day of June 1992.

This is an appeal by the defendant from an assessment of damages for personal injuries to the plaintiff. The arguments on appeal were directed at three components of the award, the sum of $30,000.00 for pain, suffering and loss of amenities of life, the sum of $14,500.00 for past economic loss and the sum of $70,000.00 for future economic loss. It is desirable first to narrate the relevant history.

At the time of her injury on 16 October 1989 the respondent was nineteen years of age. She already suffered from a congenital condition of kyphoscoliosis which caused her some mild symptoms of lower back-ache from time to time and which required precautionary avoidance of any work involving heavy lifting. Consequently, she confined her pursuit of work to a suitably limited area of activity.

In his reasons for judgment the learned trial Judge wrongly said that this condition was asymptomatic. He is also criticised for having said that her condition "may have produced adversity late in the plaintiff's life", when plainly it has produced adversity already in the form of some symptoms and in a limitation upon her activities.

While these criticisms are well-founded they have little practical effect because the former error did not touch the award in any way and while the latter was relevant to loss of earning capacity, it is plain that His Honour had regard to the pre-existing limitations when he was assessing the award for this loss.

The respondent's schoolwork had been unimpressive and for a few years after leaving school she had had little employment. This was substantially due to what was described as her family's dampening influences upon her exercise of her earning capacity. She had been married in Yugoslavia, but quickly divorced her husband and returned to Australia.

However, for about a year before her injuries, she had reasonably kept in work and at the time of the accident she was undertaking a TAFE course in order to gain secretarial skills. It is significant that during her convalescence she successfully completed this course and then went to Sydney in pursuit of suitable employment. However, by the time of the trial in August 1991 she had been unsuccessful in obtaining paid employment although she had made numerous applications. She kept active in some unpaid work.

The appellant laid great emphasis upon her early work history, but at that time she was a very young person and retarded by her family's influence. By the time of her injuries and subsequently she had shown a positive attitude and some commendable endeavour in realising her earning potential and so her earlier history has little significance. This undermines the appellant's case in many respects because this proposition was the foundation of the argument in support of them.

The respondent's injuries consisted of a laceration to her left knee, bruising from her seat belt and crush fractures to two thoracic vertebrae at the levels T4 and T12 with considerable wedging. The higher injury is the worse of the two. She suffered severe pain for about six months and then it diminished until her permanent level of recovery was reached in about May 1990. Her treatment consisted mostly of rest and physiotherapy.

At the time of trial she continued to have dull pain at the right hand side at waist level from the T12 fracture but apart from some probable exacerbation this was mostly consistent with her former symptoms from her kyphoscoliosis.

Other pain regularly radiates upwards to the cervical spine and is accompanied or followed by cervical headaches. There is also some non-specific paraesthesia in the arms and legs and some right sciatic-type pain at time, particularly in rainy, cold weather.

She should not take work requiring any heavy lifting or any repetitive activities stressful upon her back. The same applies to her recreational activities. Otherwise there will be an aggravation of her pain and an acceleration of deterioration which would enlarge the chances of an operation for spinal fusion later in her life.

Objection is taken to the finding below that she would be required to undergo a fusion of the T4 vertebra "by no later than forty years of age". It is said that this is not supported by the evidence and indeed there is no evidence to that effect. On the evidence there is less than an even chance of an operation in the respondent's late forties if she engages in sedentary work but the likelihood increases (but it is not a certainty) if she undertakes more strenuous work. However, the effect of this error is minimal because the operation would reduce the pain and the two situations would sound much the same in damages.

Even without such an operation there will be a continuation of accelerated osteo-arthritic changes in the relevant spinal joints. The level of her incapacity is approximately twenty-five to thirty per cent loss of the efficient function of her spine. The higher figure is more likely to be established is she were to engage in heavy or stressful work.

The limits upon the range of compatible employment which existed prior to these injuries have not been greatly extended by them but have been emphasised. She should not only avoid carrying heavy weights, but should not engage in repetitive bending and has difficulty in standing or sitting for long periods such as she might experience in some jobs as a typiste, receptionist or shop assistant. She needs the opportunity to change position from time to time. If she has this, she could for example work as a shop assistant handling light merchandise or in a clerical position. She has also expressed the hope to marry and to run a store as a family business, as her parents have done. She could co- ordinate this with her parental duties and presumably her husband could perform the heavier tasks. Nevertheless because of the activity that would be demanded of her, she would probably pay in pain for part of what she would preserve of her earning capacity.

Of course there is also the chance that she will not marry or find a successful business; but these matters must also be relevant to the limitations upon her economic capacity in the event that she had not been injured, a situation with which her present one must be compared in order to assess the extent of her loss.

General Damages

Although the injuries were not gross and have not yet required surgery, they were quite serious and have caused her considerable pain. In addition, there will be continuing pain from them, increasing in the future, for the rest of her life unless it becomes so bad that she undergoes surgery to alleviate it. As she is still a young woman, this must be endured for many years. Despite her former limitations, she has also been deprived of a number of the amenities of life which she formerly enjoyed. The figure of $30,000.00 assessed for this component, while a little generous, is not excessive having regard to the degree of initial pain and the duration and gradual enlargement of her suffering.

Past Loss of Earning Capacity

In respect of her pre-trial loss of earning capacity, His Honour had regard to the notional weekly earnings which would have been available to her. Upon that basis, had she been totally employed from the time of completion of her secretarial course, she would have had net earnings of $22,750.00 to the date of trial. In order to allow for adverse contingencies such as "the uncertainty of the labour market and other ordinary exigencies", he reduced that figure by $8,250.00 to $14,500.00.

In this he had not only evidence of her recent employment and training history but also the chance to observe her in order to assess what her prospects might have been. Considering its proportion to the whole it is impossible to say that he failed to make an adequate reduction for the adverse contingencies. It is in respect of this issue that the appellant relied most heavily upon the past work history of the respondent from an earlier time which has been shown to be an unsatisfactory point of comparison. For these reasons, this part of the assessment is not shown to be wrong.

Future Loss of Earning Capacity

The assessment which causes most concern is that
related to the respondent's future loss of earning capacity.
Although some of the limited areas of employment which were
formerly open to her, such as some jobs as a shop assistant
or secretary, are now closed to her, she still retains a
substantial part of the earning capacity which she had
before the accident. She is trained in secretarial work and
has other experience which will hopefully bring employment
within that range of her capacity, but her added disability
will probably lead to some unemployment from time to time
and perhaps will exclude her from better-paid jobs which she
may otherwise have obtained. In other words, she is more
seriously disadvantaged on the open labour market than she
would have been if she had not been injured. If she should
marry and run a family store, she will be following much the
same path that she would have followed if she had not been
injured; but allowance must be made for her loss of capacity
for alternative work if the contingencies of life do not
favour her plans.

It is not possible to apply any mathematical formula to the assessment of this loss. Rather it is necessary to reach a global figure taking all factors into account.

However, it is relevant that the sum of $70,000.00 awarded can be converted into the present-day equivalent of more than one-third of the respondent's earning capacity over the next twenty-five years. There is no evidentiary basis for such a high award. A more realistic figure is $50,000.00; the award for this component was manifestly excessive.

Because of the generous allowance for the other components, particularly in respect of general damages, the conclusion is inevitable that, with this adjustment, the award as a whole is excessive, and it should be reduced by $20,000.00.

Accordingly, the appeal should be upheld, the judgment below for $118,633.00 should be set aside and in lieu thereof judgment should be entered for the plaintiff against the defendant for $98,633.00. The order for costs in that court will, of course, stand. The respondent should however pay the appellant's costs of the appeal.