Target Australia Pty Ltd v JULIE Grace Lawrence No. 4218 Judgment No. SCGRG 93/771 Number of Pages 6 Damages

[1993] SASC 4218

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA KING CJ(1), MILLHOUSE(2) AND OLSSON(3) JJ

CWDS
Damages - general principles - actions for tort - personal injury - fall by already injured plaintiff - woman aged 42 years - difference between pre-accident and post-accident working capacity "not great" - loss of employment in consequence of accident - inability to obtain employment due to state of labour market - effect of loss of employment not spent - injury to back, arm and shoulder with psychological complications - $77,165.02 damages including $30,000 for past economic loss, $20,000 for future economic loss and $17,500 for non-economic loss not excessive.

HRNG ADELAIDE, 11 October 1993 #DATE 11:10:1993
Counsel for appellant:     Mr G L Muecke
Solicitors for appellant:    Thomsons
Counsel for respondent:     Mr R W Evans
Solicitors for respondent: Womersley and Co.

ORDER
Appeal dismissed.

JUDGE1 KING CJ: This is an appeal by a defendant against a judgment in the District Court whereby the respondent was awarded damages for injuries sustained in an accident which occurred on 6 June 1988. Although the appellant did not formally admit liability, the question of liability was not a live issue at trial and the matter proceeded to assessment of damages. 2. The learned trial judge allowed the sum of $17,500 for pain and suffering and loss of the amenities of life, apportioned as to $10,000 for the past and $7,500 for the future. 3. The learned trial judge allowed the sum of $30,000 for the pre-judgment impact of the impaired earning capacity of the respondent and the sum of $20,000 for the future impact. He allowed $6,365.02 for special damages, $2,500 for future medical expenses and $800 for interest. The total amount for judgment was $77,165.02. All those items are the subject of attack by counsel for the appellant before us. 4. The respondent was born on 13 July 1946. She was therefore nearly 42 years of age at the time of the accident and 46 years of age at the time of trial. She was a qualified land salesperson and had, at one stage, conducted a real estate business of her own which, however, had not proved successful. 5. In August 1985 the respondent sustained an accident when she fell down some stairs. She suffered considerable injury in that accident, her injuries consisting of a fracture of the left knee, lacerations to the skull, concussion, an injury to her left arm and shoulder and also an injury to the back. There were also psychological complications. She made a degree of recovery from the injuries sustained in that accident but was by no means fully recovered when the second accident, the subject accident, occurred. 6. The learned trial judge made findings as to the respondent's condition immediately prior to the subject accident. He said, "Thus it is clear that the plaintiff complained of a number of physical and psychological disabilities throughout the period between her two accidents. She had made significant efforts to rehabilitate herself from the injuries that she suffered in and as a result of the accident in 1985, but she had not felt able to contemplate a return to full-time work. She had reached the point at which her emotional and psychological problems were being controlled to a large degree, but her symptoms had not by any means fully resolved. I find that there was a direct relationship between the plaintiff's psychological upset and her complaints of pain. There was, moreover, a physical component in her back discomfort in that the incident in 1985 had rendered symptomatic degenerative changes that had previously taken place in the plaintiff's lower back. I am satisfied, however, that the plaintiff's condition had, to a large degree, become stable prior to the second accident. I am satisfied that, by then, she had reached a point where she had some degree of discomfort at most times, but that the level of her discomfort was manageable. Occasionally, she had times when her pain flared up. Those occasions usually occurred if she undertook an act which put a strain of unusual proportions upon her back. There was, undoubtedly, an extent by which the plaintiff's psychological concerns aggravated her perception of the pain caused by her physical injuries." 7. At that time, that is to say immediately prior to the subject accident, the respondent was able to engage in remunerative employment to a degree. She felt able to undertake tasks which amounted to approximately 30 hours a week but I gather from her evidence that that was really the extent of her working capacity at that time. 8. She had three jobs immediately prior to the accident. One of those jobs was selling merchandise to supermarkets and other establishments for Australian Consolidated Press Limited. Another was selling residential units of a holiday type for a company called Vacation Ownership Pty Limited. The third was a job caring for an elderly lady for an organisation known as "Dial An Angel". 9. The learned trial judge made a finding that her total earning capacity at the time of the second incident was in the range of $15,000 to $17,500. There has been some debate before us by counsel as to the figures upon which that finding was based and as to whether it was a finding as to gross or net earnings. 10. I think that it is a fair inference, having regard to the figures appearing in the taxation returns and to other evidence, that His Honour was there referring to net earnings, and that is confirmed by the fact that the finding is immediately preceded by a reference to the net earnings of the respondent with Australian Consolidated Press Limited. A finding of net earning capacity of $15,000 to $17,000 is, in my opinion, consistent with the evidence to which our attention has been drawn. 11. The learned judge made findings as to the effect of the subject accident (p.532). He said, "I am satisfied that in the longer term, the subject fall made the plaintiff's overall physical condition but a little worse than it was before. She had a period of acute discomfort immediately after the incident, but I am satisfied that the acute phase passed during the three to six months that followed the incident in the defendant's store. The plaintiff was then left with an underlying condition that was similar to that which she had experienced before the subject accident. Her condition was made a little worse in that her underlying pain level was a little greater and her susceptibility to exacerbations somewhat higher. The exacerbations were likely to be more acute than they had been prior to the subject accident. The incidents that increased the plaintiff's pain whilst she was working at the Port Adelaide Council and at Loy's Drinks exemplify the position that had been reached. The plaintiff's recovery was complicated by the aggravation of her psychological problems by the subject accident. Her experience of pain was prolonged and intensified by this complication." 12. The learned trial judge was therefore faced with the difficult task of assessing damages to reflect the difference between the respondent's condition following the second accident and her condition immediately preceding that accident in a way which reflected the impact of the second accident upon her earning capacity and personal wellbeing. 13. The learned trial judge's assessment of $30,000 to reflect past economic loss was strongly attacked by Mr Muecke, who appeared for the appellant. He stressed that on the judge's findings the working capacity following the second accident was "very similar" to that which existed prior to the second accident and that the difference, again using an expression of the learned trial judge, was "not great". 14. He argued that the sum of $30,000 was a manifestly excessive amount to reflect such a relatively small difference in earning capacity, pre-accident and post accident. 15. The difficulty about that approach, however, is that one result of the second accident was that the respondent lost her employment. She lost her employment both with Australian Consolidated Press Limited and Vacation Ownership Pty Limited. She lost that employment in the sense that as a result of the accident she was unable to perform her duties and had to give up that work. It appears that she continued with the work for Dial An Angel for some considerable time after the second accident, and there may be a question as to how far the exacerbation of her condition in the second accident resulted in the loss of the work with Dial An Angel. 16. However, it is clear that as a result of the second accident, the respondent lost the substantial sources of her income. Since that time she has been unable to obtain employment compatible with her restricted working capacity. 17. In about March 1990 she made an attempt to obtain an income by establishing a business known as Lawrence Marketing Services. That business apparently is of a consultancy nature and is an attempt to sell her services as a consultant in relation to merchandising and public relations and related matters. So far it has not produced an income. 18. In cases of this kind the loss of remuneration from employment is, in my opinion, to be attributed to two concurrent causes. One is the loss of the pre-accident employment as a result of the injuries sustained in the accident. The other is the state of the labour market. That being so the loss of the employment, and consequently the injuries sustained in the accident, are causative of the respondent's loss. As time goes on, the relationship of the loss of the employment to the inability to earn becomes more and more remote. There must come a time when that factor becomes so remote that it ceases to be causative and the loss of income must thereafter be attributed to the inability of the plaintiff to obtain employment by reason of the state of the labour market. 19. In the circumstances of the present case I think that the learned judge was right to treat the unemployment of the respondent to the date of judgment as being attributable to the loss of her pre-accident employment, and hence attributable to the injuries sustained in the accident. 20. If the learned judge had allowed the full amount of loss of earnings for the period between the date of the subject accident and the date of judgment, based upon the respondent's pre-accident earning capacity as he estimated it, the amount allowed for pre-judgment economic loss would have been substantially greater than that which the learned judge allowed. 21. There were, however, uncertainties which had to be taken into account. It was by no means certain that the employment with Australian Consolidated Press Limited would have continued indefinitely or continued throughout the five year period approximately prior to judgment. There was no guarantee that it was a permanent position, and the fact that Australian Consolidated Press Limited was unwilling to modify the respondent's duties to take account of her reduced working capacity following the accident is perhaps an indication that it was by no means a secure employment. 22. The employment with Vacation Ownership Pty Limited was limited by the nature of the project. When the units were sold the job would have ceased. As I have said, the respondent continued with the Dial An Angel job for only some 12 months after the accident. 23. These factors certainly were weighty factors in the assessment of pre-judgment economic loss, and Mr Muecke has properly stressed them. It seems to me, however, that the learned judge has made a reasonable discount for those factors. There are many uncertainties attendant upon an assessment in a case of this kind. The learned trial judge had to do his best with the materials which he had. I am unable to detect any error in the way in which he approached the matter of pre-trial economic loss, nor any basis upon which this court should interfere with it. 24. There was then the question of future economic loss. As Mr Muecke has stressed, there is no great difference between the respondent's present earning capacity and her pre-accident earning capacity. Nevertheless, the effect of the loss of her pre-accident employment cannot be regarded as spent. She is without a job; she is struggling to earn some money by operating a business, the results of which are by no means promising to the present date. I think that the learned judge was required to make some reasonable allowance for the future impact of the earning capacity which was impaired by the subject accident. 25. I am unable to say that the sum of $20,000 which His Honour allowed is an excessive figure. 26. I turn to the question of non-economic loss. As I have already mentioned, there was an acute phase of the respondent's suffering in the period following the subject accident. That acute phase passed after a period of some three to six months. His Honour described the respondent's pain and suffering as follows. "Since that time," - that time being the date of the subject accident - "the plaintiff has suffered a considerable amount of pain in her low back, her right hip, her neck and her left shoulder. She has also suffered from frequent headaches." 27. There was in addition the psychological complication. There is no doubt that the respondent has become obsessed with her injuries and disabilities to the point at which, to use the judge's expression, she has become "somewhat paranoid" about them. There can be no question that there has been a worsening in her psychological condition as a result of the second accident and that that has exacerbated the pain which she has suffered from the physical injuries sustained in that accident. 28. The sum of $10,000 which the learned judge has allowed must cover the additional pain and discomfort which the respondent has suffered as a result of the second accident for the period of almost five years prior to judgment. I do not think that that can be regarded as an excessive amount. 29. She will continue to suffer some additional discomfort as a result of the second accident into the future and her psychological problems arising from the second accident are by no means resolved. I consider that the sum of $7,500 allowed for the future also is not to be regarded as excessive. 30. The learned trial judge was faced with a difficult task in separating out the special damages which have resulted from the second accident as distinct from the first accident. I think that he has done as well as it is possible to do in the circumstances and I do not think that an appellant court could interfere with the figure at which he has arrived. 31. Likewise, he had to make some estimate of the likely future medical expenses which would result from the additional problems arising from the second accident. I do not think that there is any ground for interfering with the figure of $2,500 allowed under that heading either. 32. In my opinion, therefore, in this difficult case it cannot be said that the learned trial judge has made any error, or that the assessment is manifestly excessive or a wholly erroneous assessment of the respondent's loss and I will dismiss the appeal.

JUDGE2 MILLHOUSE J: I agree.

JUDGE3 OLSSON J: I also agree.