Target Australia Pty Ltd v Moloney
[2000] VSCA 124
•24 July 2000
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 7844 of 1998
| TARGET AUSTRALIA PTY. LTD. |
| Appellant |
| v |
| CAROLYN ANNE MOLONEY |
| Respondent |
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JUDGES: | BROOKING, BATT and CHERNOV, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 15 March 2000 | |
DATE OF JUDGMENT: | 24 July 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSCA 124 | |
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NEGLIGENCE – Personal injuries – Application for adjournment – Whether persisted in – Directions as to “serious injury” – “A body function” – Damages for pecuniary loss – Directions as to contingencies – Whether verdict excessive – Accident Compensation Act 1985, s.135A(19).
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APPEARANCES: | Counsel | Solicitors |
For the Appellant | D.E. Curtain, Q.C. and | Herbert Geer & Rundle |
| For the Respondent | T.P. Tobin and A. Keogh | Stringer Clark |
BROOKING, J. A.:
I agree with Batt, J.A.
BATT, J. A.:
On 26 November 1993 the respondent, Carolyn Anne Moloney, was injured in the course of her employment when she fell some six or seven feet from a step-ladder to a concrete floor while attempting to retrieve a bulky item from an overhead storage area within the lay-by section of the Warrnambool store of her employer, Target Australia Pty. Ltd., the appellant. She fell flat on her back, a little to the right, with her legs in the air and her head tucked up. As a result she sustained neck and back injuries. In addition, it would seem from their verdict, to be mentioned later, that the jury accepted that the fall aggravated a pre-existing degenerative condition of the respondent’s right hip which until then, or possibly later, was asymptomatic.
The respondent was at the time 23 years old, having been born on 22 August 1970. She had married three weeks before she was injured in the fall. She had been employed by the appellant at its Warrnambool store since 1990 as a casual part-time shop assistant. Although her employment was of a casual nature, she ordinarily worked on average 20 hours a week for most of the year and effectively full-time in the period leading up to Christmas. She was a temporary full-time[1] employee at the time of sustaining her injuries, though the clear expectation was that she would shortly return to casual employment. According to Ms O’Donnell, the appellant’s Warrnambool personnel manager, the respondent was an excellent worker and there was a probability at the time of her fall that when one of the full-time positions for shop assistants at that store became vacant she would be offered it[2]. After her fall she was able to work only a few hours a week for the respondent and was much restricted in what she could do.
[1]The word “full-time” seems to be used in the evidence as the opposite of both casual and part-time.
[2]The employment structure had changed by the time of the trial, as discussed later.
Before sustaining her injuries the respondent had received income of $198 gross per week for 20 hours’ work with the appellant. For the year ended 30 June 1993 her gross income from the appellant was $8,983. In addition she received $2,229 by way of benefit from the Department of Social Security.
Besides her employment with the appellant, she worked six hours a week as a cleaner at a convent in Warrnambool for $60 gross.
Before the fall the respondent enjoyed good health and an active lifestyle, which included competition netball and social tennis. After her fall she could manage to play merely one set of inferior tennis, and at considerable cost.
As a result of the fall, the respondent suffered, and according to the preponderance of medical opinion was at the time of the trial, referred to later, still suffering, from considerable pain in the lower back, pain between the shoulder blades, soreness in the neck and other associated pains. In addition she also had had, and at the time of trial still had, restriction in the movement of her right hip, which, as I have said, it would seem from their verdict, the jury found was aggravated or accelerated as a result of the fall. Medical opinion at the trial was that at some time, variously estimated, in the not too distant future, and certainly while she was still a relatively young person, the respondent would need to have her right hip replaced. In addition to her physical injuries, the respondent, as a result of chronic pain, restricted functioning and failure to recover from her orthopaedic injuries, came to suffer bouts of depression, with one severe episode accompanied by some suicidal ideation leading one psychiatrist to diagnose major depression. The depression fluctuated with periods of relative normality of mood. According to both psychiatrists who gave evidence at the trial, the prognosis for the respondent’s depressive disorder was directly related to the prognosis for her orthopaedic problems, which was that they were likely to continue. The respondent’s marriage failed after about 18 months. It would seem from her evidence and that of the psychiatrist Dr. Ivers that the respondent’s chronic pain and the financial stringency resulting from her reduced earning capacity had some adverse effect on matrimonial difficulties. On the other hand, the matrimonial difficulties exacerbated her depression. They were all, according to Dr. Ivers, “inextricably linked together”. At the time of the trial the applicant was living in a relationship with another man, which seemed on the expert evidence to make for some improvement in her psychiatric condition.
In a writ filed in the County Court at Warrnambool (Portland Registry) on 3 June 1996 the respondent sued the appellant for damages for personal injuries allegedly suffered in the course of her employment by, and as a result of the negligence of, the appellant. The particulars of injury given in the statement of claim filed on 8 January 1997 were lumbar disc protrusion; severe chronic low back pain; injury to the cervical spine; neck pain; thoracic spinal pain; headaches; abrasions and bruising to the right loin and right gluteal region; shock; nervousness; anxiety; psychological disturbance; and depression. The respondent, having apparently obtained neither a determination of the degree of her impairment satisfying sub-s.(3) of s.135A of the Accident Compensation Act 1985 nor consent or leave to bring proceedings under sub-s.(4), alleged in her statement of claim that her injury constituted a serious injury within the meaning of s.135A[3]. By its defence the defendant denied negligence and alleged contributory negligence. It also denied that the respondent’s injury was serious.
[3]By sub-s.(19) “serious injury” means, so far as material, “(a) serious long-term impairment or loss of a body function; or ... (c) severe long-term mental ... disorder ...”. In Hanrahan v. Davis [1997] 1 V.R. 285 it was held that a worker might at trial satisfy the requirement contained in s.135A(2) that the worker’s employment-related injury was a “serious injury”. The effective over-ruling of that decision by the insertion of sub-s.(2A) by s.32(1) of the Accident Compensation (Amendment) Act 1996 did not apply to the respondent’s proceeding since, by s.32(2), the amendment applied in respect of any proceedings brought on or after the commencement of s.32, which, by s.2(1), was 25 June 1996.
The proceeding came on for trial at Warrnambool before a judge and jury on 27 October 1998. On the second day of the trial the appellant admitted negligence, and on the third day it abandoned the defence of contributory negligence. Thereafter the trial proceeded as an assessment of damages subject, however, to the jury’s being satisfied by the respondent that her injury was a serious injury. After a trial lasting seven days the jury on 4 November 1998 returned a verdict finding that the respondent had suffered a serious injury and assessing her damages for pecuniary loss[4] in the sum of $250,000 and for pain and suffering in the sum of $100,000. On the same day judgment was given for the respondent in the sum of $348,274.40 inclusive of interest and allowing for statutory deductions, together with costs on Scale “D” of the County Court Scale on a solicitor/client basis including the cost of transcript, but with a reservation of counsel’s fees. The statutory deductions were $225.60 from the jury’s assessment of pecuniary loss damages and $20,000 from the jury’s assessment of pain and suffering damages, and the agreed interest on the two sums for damages was $16,500 and $2,000 respectively.
[4]A transcript of the Associate’s question to the jury foreman omits these three words, but it may well be that the transcript, which is defective in many other places, is defective here also. In any event, the jury, having had the questions explained to them by counsel and the judge several times and having been given a sheet containing them, could have been in no doubt about the subject matter of the question put by the Associate immediately after the question relating to serious injury.
The appellant has appealed to this Court against the judgment of 4 November 1998 on a number of grounds, seeking in the notice of appeal a new trial, though its counsel in the course of argument made a request, in which counsel for the respondent joined, that this Court should re-assess damages in the event that the appeal succeeded solely on the ground that the verdict for damages for pecuniary loss was excessive or, it would follow, otherwise in relation to damages alone. In the end, four major contentions were advanced on behalf of the appellant. They were amply covered by the grounds of appeal, which it is unnecessary to set out.
The first major contention was that the trial judge erred in not granting the appellant an adjournment of the trial to the next sittings at Warrnambool (and consequentially discharging the jury) when he allowed the respondent to amend the particulars of injury in her statement of claim on the second day of the trial. It is necessary to set out at some length the factual context in which that contention is advanced. That the respondent suffered an injury to her right hip in her fall was neither particularised in the detailed list of injuries set out in the statement of claim nor opened by her counsel, who nominated on numerous occasions in his address only neck and back injuries as physical injuries suffered in the fall. The respondent was the first witness called and began giving evidence on the first day of the trial. The next day in the course of examining her in-chief counsel, exploring her statement that the pain from her back injury went down her (right) leg at times, asked whether she felt the pain in a number of nominated parts of her body including the hip. She answered that she had it in the hip and, in substance, that her hip joint became stuck when her leg was bent in bed, causing real pain. In response to a question as to what concerns doctors had told her they had in respect of her “hip problem”, the respondent said that one had told her that he thought that she would have to have an earlier hip replacement at some stage. Counsel returned to the hip a little later, obtaining the answer that it had become worse over the last 18 months. He then indicated that the doctors were going to give evidence about what could, in effect with the benefit of hindsight, be seen on the x-rays taken of the respondent’s right hip taken shortly after the accident. Counsel for the appellant objected to the evidence about a specific hip injury as coming “totally out of left field”, saying that the appellant had a problem with it, especially as “serious injury” was one of the issues in the case. Counsel for the respondent accepted that the hip injury had not been pleaded and made application to amend the particulars of injury to include it, but claimed that the appellant had been served with a report of Mr. Schofield of 9 April 1997 referring to the problem and with more recent reports about it and had therefore been put on notice and was not surprised. Counsel for the appellant said that he could not oppose the amendment but that there were certain things that flowed from his Honour’s granting leave to amend in that the appellant was very significantly disadvantaged. He drew attention to the radiological report on the x-ray taken on 3 December 1993, which made no reference to the hip. He went through the medical reports which touched on the hip, showing that in two early reports of Mr. Schofield there were mere passing references to changes in the right hip, in one case described as “for unknown reason”, and that the more recent reports, despite being dated 30 September 1998 and 16 October 1998, were not faxed to the appellant’s solicitors until 26 October or, in one case, a few minutes before the trial commenced on 27 October. (I may say that, in my view, the contents of Mr. Schofield’s earlier reports were quite insufficient to put the appellant on notice that a specific hip injury would be given in evidence and relied on. Nor did tardy service of the more recent reports make up for a failure to amend or even to give notice in terms, of intended reliance upon a hip injury.)
Counsel for the appellant agreed with the judge that the amendment was appropriate[5] and said that his first application was to have the matter stood down briefly to obtain instructions, which was granted. On resumption he made application to discharge the jury and have the matter adjourned out of the list to enable the appellant to obtain medical opinions. The judge asked why the matter could not be dealt with in running by obtaining telephone instructions from defence medical witnesses. He said that he would not consider an adjournment unless counsel could demonstrate that “it” could not be dealt with in running. He accepted that the appellant was entitled to know about the allegation and get evidence about it but thought that the appellant should be able “to work this out by the x-ray”. Counsel said that it was really a matter of the doctors’ having access to what was the appropriate material from their point of view. The judge asked whether counsel wanted some more time, saying that he was reluctant to adjourn anything. Counsel responded that he was reluctant to make the application but that it had to be done in the circumstances. He asked for a little more time for enquires to be made, which, too, was granted. Upon resumption he stated that two of the defence medical witnesses needed to see the x-rays at least and that the third was in theatre that morning and so could not be reached. Discussion continued, which it is sufficient to summarise by saying that arrangements were made between the parties for the respondent’s solicitors to have the x-rays couriered the following morning (29 October) to the three orthopaedic specialists in Melbourne to be called for the appellant and for the evidence of the respondent herself to be concluded and to be followed by that of lay witnesses, general practitioners and a psychiatrist, so as to enable counsel for the appellant to have the instructions of the appellant’s orthopaedic experts before cross-examining those to be called for the respondent. Early on the morning of 29 October counsel for the appellant is recorded as saying that the x-ray films had been delivered overnight, there had been a problem with one of the radiologist’s reports but that his instructing solicitor had been able to read it over the phone, and that he was still in a position of not knowing until 12.30 p.m. but his “aspiration will be” that the appellant would be in a position to proceed. The last reference[6] to the matter in the transcript appears to be shortly before midday on the same day, when counsel for the appellant, having obtained up to date instructions, informed the judge that it would be in a position to proceed with the evidence of its orthopaedic specialists on the afternoon of Monday 2 November or the morning of Tuesday 3 November. (Those times were not likely to cause any delay after the closure of the respondent’s case, to judge by what her counsel had told counsel for the appellant and repeated to the judge about witnesses he was yet to call.) Counsel for the appellant also stated to his Honour that it looked at that stage as if there would not be any unforseen impediment, that the specialists would have a chance to see the material and that they would have an opportunity to comment on it, even if he had “to put something to them in their evidence.”
[5]His Honour did not formally pronounce an order for amendment, though he may be taken to have done so tacitly, since he said it was appropriate and obtained the concurrence of counsel for the appellant with that view. To judge by the statement of claim included in the Appeal Book, the amendment was not made in writing. But the trial proceeded, and the appeal was argued, as though amendment had been ordered and made.
[6]Save for a passing reference to the filing of further reports received from the appellant’s doctors.
The appellant contended on appeal that by his Honour’s refusal of an adjournment it was prejudiced in its defence and in particular in relation to its capacity to compromise the proceeding; that the prejudice was wider than its doctors’ not having previously considered the x-rays from the point of view of the alleged hip injury; and that it was put in the difficult position of preparing the defence “on the run”.
Admittedly, this was a major change in the respondent’s case at a late stage, with an additional injury of a different nature being relied on, and counsel should have seen that notice was given that it was to be relied on. But the answer to the appellant’s contention is, as the respondent argued, that there was no persisting application for adjournment and discharge of the jury. Rather, the record of the proceedings to which I referred shows that counsel and his instructing solicitor commendably endeavoured, with the judge’s proper indulgence, to see whether they could conduct the defence adequately, even if not absolutely perfectly, without the need for an adjournment, and in the end found that they were able to do so. The appellant’s position was re-assessed continually and the judge was informed regularly of the results. It was said, however, for the appellant that the real question was not whether the application for adjournment had been persisted in because his Honour had given a ruling which set unfair and far too narrow “parameters” within which counsel then sought to work. In my view, however, his Honour did not reject the adjournment application, and did not preclude counsel from renewing the application. Indeed he was solicitous of the appellant’s position, giving it time and endeavouring to see that it was not prejudiced. The application was not renewed, even when Mr. Quirk later said that to properly evaluate the hip he would need to re-examine the respondent and also take a further history from her.
The appellant relied on one item of prejudice in particular, its inability to try to compromise the proceeding as amended. Now, it is true that the amendment considerably strengthened the respondent’s case on “serious injury” and made it likely that higher damages would be awarded. Accordingly, any offer that the appellant might already have made was likely to be inadequate because its foundation was superseded, and the time allowed for acceptance of any new offer deprived it of any real sanction with regard to costs. It is also true that in indicating the prejudice of which he would require to be satisfied if he was to adjourn the proceeding his Honour expressly spoke only of inability to deal with the additional injury relied on in running, though throughout he indicated a concern as to prejudice generally to the defendant. But, although there was a reference by counsel for the appellant and the judge to “positions ... taken in other places” by “faceless people”, counsel did not raise with the judge the difficulty of compromising the proceeding and in particular did not seek an adjournment on that ground.
Since the judge did not refuse an adjournment the respondent’s contention that his Honour’s decision was a discretionary matter of practice and procedure, for which Coulton v. Holcombe[7] was cited, does not fall for consideration.
[7](1986) 162 C.L.R. 1 at 6 and 11-12.
The second major contention of the appellant was that the trial judge erred in charging the jury on the question of serious injury in that he wrongly included depression (and headaches and pain in the shoulder blades) amongst the injuries relied on by the respondent as giving rise to serious long-term impairment of a body function within paragraph (a) of the definition, whereas depression at least was relevant only to paragraph (c); that he misstated the law as to the injury which is compensable where there is aggravation of a pre-existing injury; that he confused a body function with injury to a part of the body; and that he wrongly aggregated a number of small injuries to allow a finding of serious injury. The last complaint is incorrect: Humphries v. Poljak[8] The second last complaint related to a matter that had been foreshadowed by counsel for the respondent during discussion in the absence of the jury before final addresses and had been adopted by his Honour with the agreement, or at least without dissent from, counsel for the appellant. In addition, there was no exception taken to any of the matters now complained of. It was put that his Honour had erred sufficiently for failure to take an exception not to preclude reliance on the matters now complained of. In the circumstances of this case, I do not agree. Any misstatement concerning aggravation of a pre-existing injury was simply a slip and could easily have been corrected had exception been taken. Likewise, although more significant, the inclusion on several occasions of depression in a consideration of paragraph (a) of the definition of “serious injury”, assuming it to be erroneous, could quite easily have been corrected had exception been taken. I rather think that any correction would have worked to the disadvantage of the appellant in that it would have made clear to the jury that there was a completely separate basis for being satisfied that the injury of the respondent was a serious injury, namely, paragraph (c) of the definition. Whilst it is undoubtedly true that the failure to take a relevant exception does not prevent the Court of Appeal from forming the opinion, necessary for the grant of a new trial[9], that a substantial wrong or miscarriage has been occasioned in a trial[10], for the reasons already mentioned and for one additional reason I am not of that opinion here. The additional matter is that it is to be borne in mind that it was virtually conceded that, if (as I think their assessment of damages shows they were) the jury were satisfied that the respondent’s fall aggravated her pre-existing hip condition, her injury was serious.
[8][1992] 2 V.R. 129 at 138 (proposition 6).
[9]R.64.23(2) of Chapter I.
[10]Rukavina v. Incorporated Nominal Defendant [1992] 1 V.R. 677; and see Williams, Civil Procedure – Victoria, paras.[64.01.395 to 64.01.405].
But I would not leave this part of the appeal without discountenancing entirely the view put to this Court and to the jury by counsel for the respondent, in slightly differing formulations, that to work, to undertake full-time employment or to engage in manual work is “a body function” within paragraph (a) of the definition of “serious injury”. To do such things might be described as a function, or even (by some) as the chief end, of homo sapiens, but that is quite a different matter. Counsel for the respondent argued that his submission was supported, if not necessitated, by the fact that the definition did not speak of a function of a “part of” the body, but of “a body function”. To my mind, however, the word “body” used adjectively need not refer to the body as a whole but may apply to any one or more of its parts and here necessarily does so. If the respondent’s submission were correct, one could treat the engaging in any human avocation or recreation, for instance, as a body function. “A body function” denotes a physical act or operation, not some “applied” activity.
I should say that his Honour began the relevant portion of his charge by defining or describing a body function in unexceptionable terms, but then moved to put to the jury as a possible “point of view” the body function which counsel for the respondent had put to them and, as I have said, put to this Court. But no complaint to this Court has been made for the appellant about that. In any event it would be a sufficient answer to any such complaint that not only was no exception taken but that, when counsel for the respondent at the invitation of counsel for the appellant foreshadowed that he would put that view of the relevant body function to the jury, counsel for the appellant explicitly agreed in that course or, if the agreement which he expressed did not extend to that point, in no way dissented from what counsel for the respondent foreshadowed.
The third major contention of the appellant was that the trial judge failed to explain properly to the jury their responsibility to discount the respondent’s claim for damages for diminution of earning capacity for the vicissitudes (or contingencies) of life. In particular it was said that, although his Honour more than once made mention of vicissitudes, sometimes indeed exemplifying them, he failed to relate them specifically to the respondent, her environment and her hip condition. Such examples as he gave were, according to the argument, non-specific but rather were of contingencies such as might happen to any person or (in relation to bearing children) any woman. It was contended that his Honour should have told the jury that the plaintiff had an underlying hip condition and was vulnerable to any incident, so that a fall might not only make her liable for a hip replacement but also interfere with her earning capacity. For the requirement that the direction as to contingencies should be related to the circumstances of the particular plaintiff counsel for the appellant relied on General Motors-Holden’s Pty. Ltd. v. Moularas[11]. More generally, he might have said that it is the great guiding rule that “[t]he law should be given to the jury not merely with reference to the facts of the particular case but with an explanation of how it applied to the facts of the particular case”.[12]
[11](1964) 111 C.L.R. 234 at 241-242, 250-251 and especially 257-258.
[12]Alford v. Magee (1952) 85 C.L.R. 437 at 466.
It is true that his Honour did point out to the jury that the respondent was abnormally vulnerable to injury and that it was a matter for their consideration whether, even if she had not fallen from the ladder, she might have required a hip operation within the next five or ten years or so. That statement of his Honour, however, was not linked to his explanation of how damages for loss of future earning capacity might be assessed or to a reference to the vicissitudes of life.
The difficulty for the appellant is that again no exception was taken on this ground. Moreover, counsel for the appellant had not in his closing address to the jury adverted to the specific contingencies the subject of the present contention. Whether there was, nevertheless, a substantial wrong or miscarriage is by no means easy, and because of the view which I take on the appellant’s final contention I do not find it necessary to express a concluded opinion on this question.
Finally, the appellant contended that the amount of the verdict of the jury for damages for pecuniary loss, $250,000, was excessive, that is, outside the bounds of what is reasonable or so high that reasonable persons confining their attention to relevant matters could not have arrived at such an estimate[13]. For this purpose, as the appellant accepted, the Court must assume that the jury took the view of the evidence most favourable to the respondent and, in particular in this case, that it was satisfied that the pre-existing condition of the respondent’s hip was aggravated by her fall.
[13]Australian Iron & Steel Ltd. v. Greenwood (1962) 107 C.L.R. 308 at 311-312.
Counsel for the respondent had submitted to the jury that, for the reasons he gave, an appropriate figure for the respondent’s loss of earnings to the date of the trial was $47,000, and on appeal counsel for the appellant allowed, as counsel for the respondent contended was the case, that $50,000 was the proper figure for past economic loss. That left $200,000 for loss of future earning capacity.
The question, therefore, is whether the latter sum was beyond what was reasonable. For the appellant it was contended that, given the respondent’s work history, the area in which she lived, and her pre-existing condition, the amount was excessive. Taking the multipliers of 1063 and 1149 as the present value when invested at 3% p.a. of $1 per week to age 60 and 65 respectively for a woman aged 28 at the date of trial, counsel said that the sum of $200,000, assuming it not to have been discounted, represented the amount of $188 net per week for every week to age 60 or $174 to age 65 and that, if the sum of $200,000 were assumed to have been arrived at after discounting by 15 per cent, the undiscounted sum represented a weekly amount of $221 for every week to age 60 or $204 for every week to age 65. He submitted that a discount of 15 per cent was appropriate for someone in secure employment and perhaps likely to be promoted but was quite inappropriate for somebody working part-time, albeit looking for full-time work, with the respondent’s pre-existing condition. He drew attention to the fact that counsel for the respondent in his final address had put the figure of $150,000 to the jury as an appropriate figure without, he said, suggesting any discount for the vicissitudes of life. I do not, however, think that the latter part of that statement is quite fair to counsel for the respondent, for he had told the jury to make some discount because the respondent had a risk of a hip breaking down irrespective of what happened in the accident and had suggested to them that, in that event, they might take a multiplier for 10 years (452), yielding $67,800, which he said was “another down-side limitation”. But it is correct that, apart from a passing reference to discounting when speaking of the possibility that the respondent would have a family, he did not refer to any other contingencies. In fairness it must also be pointed out that counsel had stressed more than once that the discount tables were merely a guide and had said that the upper and lower limits were $60,000 and a little over $200,000. But he did put to the jury that a realistic figure for loss of earning capacity was “in the magnitude of $150,000, but remember, it is your judgment. No more than that.” It is not absolutely clear whether the last four words quoted refer to the figure of $150,000 or, in some way, to “your judgment”. However, the former explanation seems likely, as a little later, speaking of past loss of earnings and future loss of earning capacity, counsel said “47,000 or 150,000-odd, a figure shy of 200,000[14] but it’s for you to make that judgment.”
[14]Emphasis supplied.
For the respondent it was submitted that the evidence, on the best of view of it for her, supported an assessment of damages for future economic loss of more than $200,000. Orally and in writing workings were given that were said to support that submission. It is not, I think, necessary to set these out. It was said that, on the basis of the above multipliers, the jury’s assessment reflected less than $200 net per week after taking into account vicissitudes. It was said that $204 per week to age 65, arrived at after a 15 per cent discount for contingencies, was not unreasonable.
In order to determine this issue it is necessary to state some further facts. In November 1993 the wage rate for a person in the position of the respondent with the appellant was $12.49 per hour. At the time of the trial it was $14.28 per hour. The respondent said in evidence that before her fall she constantly asked for either part-time or full-time work and that, if she had been able to get full-time work with the appellant, she would definitely have taken it. The respondent left Warrnambool in the middle of 1995 and after residing in various places and having various employments, she went for a second time to Moama, New South Wales, in May 1997. Since there is no real question about the respondent’s past economic loss, it is not necessary to attempt to trace from the sketchy material her earnings history from the time of her fall until the trial, it being sufficient to refer to her employment at the time of the trial, upon which counsel here and below based themselves. In about October 1997 she obtained work at a pizza parlour delivering pizzas. She said in evidence that on average she worked six to seven hours per week, that in the last few weeks the hours had increased to about 20 per week and that she tried to work for no more than four hours on any day because otherwise her symptoms worsened the following day. She agreed in cross-examination that two weeks before the trial she had worked at least two successive days of five and four hours. She likewise agreed that she was in fact working four hours a day on average, 20 hours a week, in the pizza shop and that that was roughly what she had been working for the appellant except for the period before Christmas when she did some extra work. She said that on a busy night she would work an extra hour or so if required by the pizza shop proprietor. She earned $10 an hour delivering pizzas. Her counsel went to the jury on the basis that she was working 20 hours a week delivering pizzas at $10 gross per hour.
For the reasons which follow, I have come to the conclusion that the jury’s verdict of $250,000 for damages for pecuniary loss, and more particularly the component of approximately $200,000 for the future economic loss, exceeded what was reasonable even on the best view of the evidence for the respondent. In assessing the respondent’s earning capacity if she had not suffered the fall, the jury had to come to a view, on such evidence as there was and on their own experience of life, on the likely age at which the respondent would have retired from the workforce if her hip condition did not force her to retire prematurely. They also had to come to a view on whether and, perhaps more importantly, when she would have needed a hip replacement and as to the effect of a replacement and of the condition necessitating it upon her earning capacity. They further needed to assess the security of continued employment for her having regard to her lack of qualifications and skills other than from experience. In addition, they had, of course, to allow for other contingencies both of a general nature and specific to her. A possible favourable contingency falling for consideration was that the appellant might engage her as a full-time employee. But the evidence showed that by the time of the trial, to quote Ms O’Donnell, “The structure now mainly involves [sic] around part-time positions rather than full-time – the full-time positions are mainly held by trainees ... in the management of the store”, so that on the selling floor there were then three full-time staff and “about 40, 30, 38” part-time. Since the jury were not to speculate when they were able to know[15], they were to act on this evidence showing how small the proportion of full-time shop assistants had become by the time of the trial. But it is true that in assessing the respondent’s earning capacity after her fall the jury had to take into account the insecure nature of the job of delivering pizzas in a small country town (and, perhaps, in its neighbour), and also the possibility that, because of aggravation due to the fall, the hip condition might prevent the respondent from engaging in part-time work either at all or to the extent that she was doing so at the time of trial. It may also be that, although the onus of proof lay on the respondent, the jury were entitled to find that at the time of the trial the respondent was not really able to work five or four days of five hours in each week even though her counsel went to the jury on the basis that she was working, say, 20 hours per week.
[15]Kizbeau Pty. Ltd. v. W.G. & B. Pty. Ltd. (1995) 184 C.L.R. 281; Willis v. The Commonwealth (1946) 73 C.L.R. 105 at 109 and 116; and VACC Insurance Co. Ltd. v. Lekkas [1999] 2 V.R. 529.
Weighing up all the considerations, I consider that a figure of some $200,000 for future economic loss simply does not make proper allowance for adverse contingencies and other factors affecting the respondent’s pre-accident earning capacity such as her security of employment as a part-time employee and the likely date at which she would have retired from the workforce. The requirement that the assessment be evaluated by this Court on the most favourable view of the evidence to the respondent does not mean that adverse contingencies, which are substantial in this case, should be disregarded. Even if it was open to the jury to proceed on the basis that the respondent was suffering a net loss of $180 per week, the present value of which to age 65 on the 3 per cent table was $206,820 or a little more than the amount awarded, that figure required, in my view, very substantial downward adjustment. If the jury proceeded on the basis that the respondent would probably have worked to age 65, then, in my view, it was bound to discount the sum it arrived at by at least 20 per cent. I regard the workings put to the Court for the respondent in writing and orally to justify the verdict as not realistic. In reaching the conclusion that the sum assessed was unreasonable, I take some comfort from the fact that, although counsel for the respondent made some reference to the possibility of a higher figure, he made it very clear to the jury, in my view of his statements referred to earlier, that the appropriate figure was $150,000 for future economic loss.
In accepting the parties’ invitation to re-assess the damages for pecuniary loss, I would bring the damages for past loss of earnings up to date as at present at a round figure of $50,000. As regards future economic loss, remembering that actuarial tables are only a commencing guide[16], taking into account the various contingencies and other factors to which I have earlier referred and having general regard to the case presented and figures put to the jury on behalf of the respondent, I would assess future economic loss at $125,000. The total damages for pecuniary loss I would therefore assess at $175,000. From that figure it will be necessary to make the statutory deduction of $225.60.
[16]and that this Court does not have actuarial figures for the present value of $1 per week from age 29 or 30.
I would invite the parties in the first instance to calculate or agree interest to date on the resultant sum and also on the net figure of $80,000 for damages for pain and suffering, bearing in mind that the respondent has paid the appellant $75,000 since judgment.
For the reasons I have given I would allow the appeal to the extent indicated.
CHERNOV, J. A.:
I also agree.
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