Taylor v Finney No. Scciv-02-64

TAYLOR V FINNEY
[2002] SASC 154
Full Court: Doyle CJ, Perry and Lander JJ

DOYLE CJ. I agree that the appeal should be allowed, and that the orders proposed by Lander J should be made. There is nothing that I wish to add to his reasons.
PERRY J. I agree that the appeal should be allowed, and that the cross-appeal be dismissed. I agree with the reasons of Lander J and the orders which he proposes.
LANDER J. The appellant was the plaintiff in proceedings brought in the District Court for damages for personal injuries arising out of a motor vehicle accident which occurred on 8 May 1998.
The matter proceeded before the trial judge as an assessment of damages, the respondent having admitted liability to the appellant’s claim.
The trial judge assessed damages in the total sum of $60,796.70 made up as follows:
Non Economic Loss  $18,360.00
Future Economic Loss  $35,000.00
Loss of Superannuation Benefits  $3,000.00
Future Medical Treatment  $3,000.00
Special Damages  $1,436.70
  $60,796.70
The appellant has appealed against that assessment and in particular that part of the assessment of damages which relates to future economic loss.
The respondent has cross appealed claiming that the amounts awarded for non economic loss, future economic loss, loss of superannuation benefits and future medical treatment are manifestly excessive. It is also claimed that the total of the assessment of damages is manifestly excessive.
The appellant was born on 28 February 1947. She lived in Karachi until she came with her family to Australia in 1966. She obtained work as a receptionist and married her first husband in 1970. Her husband worked at the Woomera Air Base. She obtained employment in Woomera driving the school bus. The marriage broke down in 1980. She returned to live in Adelaide and returned to employment. She commenced a restaurant business which she conducted in partnership until 1990 when the business closed.
In 1991 she married her second husband. That marriage broke down in 1995.
After the breakdown of her second marriage she gained employment as a cleaner with Stateliner. In March 1997 she applied for a position with Serco, a bus company. She obtained casual employment and in October 1997 she commenced permanent employment with that company.
At Serco she worked broken shifts. That meant she commenced work early in the day, worked three or four hours and had an extended break in the middle of the day and then returned to work for the remainder of the day.
She would work eight hours but be paid for a total period of 12 hours.
The appellant was employed at the time of the accident.
She was active outside her employment. She involved herself in golf, fishing and dancing. She played golf at least once every weekend, sometimes twice.
She was in good health at the time of the accident, although she did have degenerative changes in her spine which were asymptomatic.
She was the driver of a motorcycle which was struck in the rear by the respondent’s motor vehicle. She went to work the next day and felt sore. Three days after the accident she consulted her general practitioner because she was suffering from headaches, shoulder and back pain. She was prescribed pain killers and was referred to a physiotherapist.
She has remained at work since this accident. Indeed she has not told her employer of the accident in case it terminates her employment.
She has continued to take pain relief which assists her to complete her working day. She has continued to work the broken shifts, to which I have referred, as that has the added advantage of allowing her to rest for three or four hours in the middle of the day. She still works overtime because the company requires her to do so.
The appellant has also used her sick leave and her annual leave to assist her in managing her pain. In the three years following the accident she had about 17 days off sick. She has taken something in the order of 271 hours by way of annual leave.
Presently the appellant earns about $600 per week after tax.
The appellant suffered a muscular ligamentous injury to her cervical spine, upper thoracic spine and lumbar sacral spine. Since the accident she has suffered from severe and constant tension type migraine headaches, neck, shoulder, upper thoracic spine and lumbar sacral spine pain and general pain in her body.
Her neck and lower back are especially sore when driving. The jarring of the bus aggravates her pain and her neck gets stiffer. She was taking about 6 panadeine forte tablets per day that were prescribed by Dr Molloy, a neurosurgeon. She now takes 2 or 3 per day.
The trial judge made the following finding:
“The plaintiff suffers neck pain and lower back pain and will continue to suffer from such pain into the foreseeable future. She has great difficulty in carrying out her employment as a bus driver and needs continual painkillers to cope. She has difficulty sleeping and cannot enjoy the leisure time she did before the accident. She can no longer go dancing and only plays golf on a limited basis. We therefore have a woman whose work enjoyment, social activities and general wellbeing have been severely adversely effected by the accident.”
She complains that her injuries have left her with a post traumatic stress disorder.
The trial judge made the following further findings:
“1At the time of the accident the plaintiff was suffering from a degenerative spine that was not causing any symptoms.
2As a result of the accident the plaintiff suffered the symptoms which she described in her evidence.
3The plaintiff fully intended to work until she was 65. In my view that is clearly supported by the evidence of her behaviour in that she is still working despite her difficulties.
4The plaintiff’s lifestyle has changed in the way that she has described in her evidence and as supported by the witnesses Mulhearn and Atkinson.
5The plaintiff is working under such difficulties that even if her condition does not deteriorate she will have to stop her work as a bus driver sometime before retirement.
6Although I cannot fix a definite time (such as the 5 years estimated by Dr Papps) I find that it is probable that it will be in the vicinity of 3 to 4 years before retirement.
7There is a slight possibility that without the accident the degenerative changes would have produced the same result, but I treat this slight possibility as a contingency in the assessment of future economic loss.”
In my opinion, there was evidence to support those findings and each of those findings were open to His Honour.
In making those findings, His Honour specifically found the appellant to be an honest and reliable witness who was not exaggerating her symptoms in any way. He found that she was a determined person who was prepared to suffer the pain, to which she referred, so she could keep her job and continue working.
The respondent complained of the trial judge’s finding on credit. The respondent submitted that there was evidence which showed her to be unreliable. It was submitted that her evidence in relation to the number of panadeine forte tablets she was taking was inconsistent with her general practitioner’s evidence. There was an inconsistency between her evidence and her general practitioner’s evidence of the amount of panadeine forte prescribed. The appellant did not resile from her evidence. She could offer no explanation for the discrepancy. The trial judge did not make any finding on this issue, nor did he need to in my opinion. This was a collateral issue which did not need to be decided. Whilst it might have been a matter which impacted upon the trial judge’s assessment of her credibility, that was a matter for the trial judge. The matter was not sufficiently important to be decisive on an assessment of credibility or reliability.
The respondent’s challenge to the findings on credibility cannot be accepted. The judge had to make a decision upon the reliability of the appellant’s evidence when challenged on this topic. There was a body of evidence which supported her evidence, in particular that of Ms Atkinson.
The appellant called four medical witnesses, two general practitioners, an orthopaedic surgeon and a neurosurgeon. The respondent called two orthopaedic surgeons and tendered a report from a psychiatrist.
It was the respondent’s case that whilst the appellant experienced some pain and suffering as a result of this accident it was not such that it would interfere with her work or her ability to work until her retirement age of 65. The appellant’s case was that whilst she could continue to work at present the injuries would cause her to have to stop work some years before retirement age. A general practitioner, Dr Papps, gave evidence that, in his opinion, she would have to stop work at about the age of 60.
Dr Osti, the orthopaedic surgeon called by the appellant, expressed the opinion that there was a possibility that the appellant could work until the age of 65 but there was also a possibility that her working life may be shortened by up to 30 per cent. The trial judge accepted the evidence of Dr Molloy, a neurosurgeon, who offered the opinion that the appellant would not be able to maintain a full time working capacity until retirement age but it was impossible to express a view as to a definite period of time by which the plaintiff’s working life had been shortened.
It was submitted that the trial judge should have found that the appellant’s low back complaints after December 2000 were caused by other factors apart from the motor vehicle accident in particular the degenerative condition. The trial judge rejected that thesis. There was evidence which allowed him to do so.
The respondent’s counsel was unable to demonstrate error on the part of the trial judge. He could not show this Court where the trial judge had erred in making the findings he did. It is not sufficient to show the Court the evidence which would support findings other than those made by the trial judge without first demonstrating that there was no evidence to support the findings made or there was evidence which showed the findings should not have been made.
In my opinion the respondent’s arguments on this appeal were arguments that should have been and no doubt were addressed to the trial judge.
All of the medical witnesses agreed that there was some risks that degenerative changes which existed before the accident could play a part in requiring the appellant to retire earlier.
In my opinion, the findings to which I have referred were open to the trial judge. His findings were supported by the evidence of the witnesses which the trial judge preferred. They were consistent with the appellant’s own evidence which the trial judge accepted.
I reject the complaints made by the respondents.
The trial judge on the evidence which he preferred was entitled to conclude that the probabilities supported a finding that the appellant’s working life would be reduced by three to four years.
The appellant’s non economic loss fell to be assessed by reference to s 35A of the Wrongs Act 1936 (SA) (the Act).
That section requires the trial judge to assign a numerical value on a scale running from 0-60 and multiply that sum with the prescribed amount under the Act. The Judge assigned a value of 12 which when multiplied with the prescribed sum of $1,530 gave rise to an award of non economic loss of $18,360.
In my opinion, the respondent has not shown that the figure of 12, assigned by the trial judge, was manifestly excessive. It is perhaps slightly higher than I might have assigned myself but I cannot say that it is outside the range for the injuries suffered by the appellant.
The trial judge proceeded on the basis that the appellant’s working capacity would be shortened by something in the order of three to four years. He found that on her present earnings that would mean a loss in the order of $615 per week. Actuarial calculations were tendered. The multiplicand was $134. That represented the present day value of the postponed loss. The trial judge proceeded on the basis that if the appellant ceased work at the age of 61 years then the present day value of the loss would be $92,410. That calculation involves an arithmetical error. The correct calculation is in fact $82,410.
The trial judge discounted the amount he arrived at because he thought it was appropriate to take into account the fact that she might still work until the age of 65; the possibility she might find alternative work; the possibility she may have retired earlier in any event; and the possibility that her degenerative back condition would have caused her to stop work before retirement even without the accident.
He reduced the actuarial calculation by nearly 60% (allowing for the correct calculation) and awarded a sum for $35,000 for future economic loss.
The appellant complains that the extent of the reduction is too great and indicates an error in the exercise of the trial judge’s discretion in relation to this head of damages.
The trial judge’s finding was that the appellant’s working capacity had been reduced by three to four years. The trial judge’s calculation assumed a reduction of four years. Some reduction had to be made for the possibility, as the trial judge found, that the appellant’s working life might only have been reduced by three years. Some reduction had to be made for all of the factors referred to by the trial judge.
There are also other factors which cannot be ignored such as earlier death and non compensable injury.
The trial judge failed to mention one other relevant factor which is often overlooked in the assessment damages flowing from a loss of earning capacity. There must be a deduction for the savings made by not having to work: Sharman v Evans (1977) 138 CLR 563 at 577.
A person in employment must usually meet the cost of travelling to and from employment. In some cases special uniforms or clothing are required at some cost to the employee. Where there is a total loss of earning capacity the plaintiff will no longer have to pay union dues.
In this case the appellant might have been entitled to free bus travel. She would probably have been provided with a uniform. There is no evidence as to whether she was a member of a union.
This is not the case to make a deduction for the expenditure incurred in producing income. However, that cost should not be overlooked in the appropriate case.
In assessing loss of earning capacity regard must be had to both favourable and unfavourable contingencies. Not all contingencies are adverse: Bresatz v Przibilla (1962) 108 CLR 541.
However, in this case there does not seem to be any compensating positive contingencies. There was no suggestion that the appellant’s earnings would have increased or that she would have worked any longer than 65.
In these circumstances there had to be some reduction in the gross present day valuation of the loss.
However, I believe that the reduction from about $82 000 to $35 000 to be too great.
In my opinion that is too significant a recognition of the contingencies. I think it reflects an over estimate of the future adverse contingencies.
I think that a recognition of contingencies by a reduction of about 25 per cent to be more appropriate. The trial judge’s reduction of nearly 65 per cent is too high.
I am of the opinion that, having regard to His Honour’s findings, an award of $60 000 would be more appropriate.
Both the appellant and the respondent have also complained about the trial judge’s assessment of loss of superannuation benefits.
Assuming again that the appellant’s working life had been shortened by four years, the loss to the appellant in superannuation benefits is in the vicinity of $9,000. The trial judge reduced that figure to $3,000. That reduction gives rise to an underestimate of the appellant’s loss under this head. This head of damage was subject to the same assessment for contingencies as the loss of future earning capacity. I think an allowance of $6 000 more adequately reflects the appellant’s loss.
The trial judge found that the appellant would need future medication for pain relief, some continuing physiotherapy treatment and also need assistance from her general practitioner.
Those requirements will, of course, extend throughout her life and not only throughout her working life.
Whilst that matter is a matter of complaint by the respondent, in my opinion, it cannot be said that a figure of $3,000 for future medical treatment over the life of this appellant is manifestly excessive.
For those reasons I would dismiss the cross appeal but allow the appeal by increasing the award by $28 000, being $25 000 for loss of future earning capacity and $3 000 for loss of superannuation benefits.
No allowance was made for interest by the trial judge. No interest arises by reason of any adjustment to future losses.
I propose the following orders:
1Cross appeal dismissed.
2Appeal allowed.
3The judgment entered in the District Court be set aside.
4In lieu therefore judgment be entered for the plaintiff in the sum of $88,796.70.

[2002] SASC 154

23 May 2002