Taylor v Johnson

[1999] NSWCA 217

CITATION:	Taylor v Johnson [1999] NSWCA 217
FILE NUMBER(S):	CA 40173/98
HEARING DATE(S):	3 June 1999
JUDGMENT DATE:	3 June 1999
PARTIES :	Meredith Taylor v Sarah Johnson
JUDGMENT OF:	Meagher JA; Fitzgerald JA; Cole AJA

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	DC 4862/97
LOWER COURT JUDICIAL OFFICER:	Garling DCJ

COUNSEL:	A - RS McIlwaine SC R - JD Hislop QC
SOLICITORS:	A - Stacks, Sydney R - McMahons, Sydney
CATCHWORDS:	Quantum - No question of principle.
CASES CITED:	Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362 Moran v McMahon (1985) 3 NSWLR 700
DECISION:	Appeal dismissed with costs

IN THE SUPREME COURT`
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40173/98
DC 4862/97

MEAGHER JA
FITZGERALD JA
COLE AJA

Thursday, 3 June 1999

Meredith TAYLOR v Sarah JOHNSON

JUDGMENT

1    COLE AJA: The sole question in this appeal is the appropriate quantum of future loss of earning apacity. Garling DCJ awarded the appellant $233,988. That sum was calculated upon the basis of a loss of $300 per week for forty years using a discount factor of five per cent and allowing fifteen per cent for vicissitudes. The appellant contends that the future economic loss should be determined using a weekly loss of $1,150 per week for forty years with a similar discount factor and deduction for vicissitudes. This would result in a figure of $896,856. 2    The appellant was born on 4 April 1978. She was thus sixteen years of age when she was struck by a motor vehicle on 11 November 1994. She was at the end of year 11 at Sydney Church of England Grammar School, Darlinghurst. She was an intelligent young lady, gifted in music, and a competent sportswoman. In addition to her school studies, she had worked as a waitress on a casual basis during 1993 and 1994 and had done work experience with a publisher. 3    The trial Judge found that in the accident she was severely injured. She was deeply unconscious and not breathing immediately after the accident. She was admitted to the Prince of Wales Hospital, remaining there until 8 December 1994. The injuries suffered by her were described by the Judge in the following terms:

"She had suffered a closed head injury, pulmonary contusions with aspiration of gastric contents, a fracture of the right ankle, a suspected ligamentous instability of the left knee, and multiple skin abrasions."

4    It was subsequently discovered that she had suffered stress fractures of the first and second lumbar vertebrae. The trial Judge accepted that, in the future, she will require fusion of the L1 and L2 vertebrae. Subsequent testing indicated that she had suffered frontal lobe damage and bilateral temporal lobe damage. His Honour also accepted that there was a fifteen to twenty per cent chance of her suffering traumatic syrinx which would involve spinal damage in the future and it would involve her bladder, her bowels and may lead to spasticity in the legs. It was held that in consequence of the injuries suffered, she would not be fit in the future for heavy physical work and would have difficulty with work requiring "a lot of sitting or static posture". 5    Notwithstanding these severe injuries, the appellant returned to school for year 12 in 1995. She successfully completed that year, gaining a tertiary entrance mark of 92.2. She nominated as her first preference at university the Arts/Law course. She gained entry into that course at the University of Technology, Sydney and commenced that course in 1996. However, during the first semester she dropped the law course. In May 1996 she successfully sought a transfer to a Visual Communications degree, commencing that course in 1997. During 1996, although with some difficulty, she worked as a cocktail waitress during the evenings and as a shop assistant. She has continued to work as a shop assistant in addition to her university course during 1997. She is successfully engaging in her design course with credit assessments. 6    The contention of the appellant is that she wished to do Arts/Law but, due to her injuries, was not able to concentrate sufficiently to successfully cope with that course. The respondent did not accept that she wished to complete an Arts/Law course, contending that her true desire was to do a Visual Communications course. Some support for the respondent's contentions was contained in a document dated 7 May 1996 which was written by the appellant when she sought transfer to the Visual Communications course. In that document she wrote that she had truly wished to do Visual Communications but, once injured, because of credits thus available to her, it became apparent that she might gain entry to any course she chose at the University. Thus, she chose Arts/Law after discussion with her parents. This material contrasted with her oral evidence that her desire had always been to complete an Arts/Law course. 7    Notwithstanding this document, the trial Judge was not persuaded that the appellant did not want to do Arts/Law. The document was to be explained on the basis that the appellant, having decided to change courses, "put the best spin on it". The trial Judge was persuaded that she really wished to do an Arts/Law course as being the best method of getting into a media type job which was her ultimate desire. His Honour said:

"… she decided to do an Arts Law Course as being the way of getting thought into a media type job, which is really what I think in the end she wanted to do … ."

Garling DCJ found that the appellant, whilst wishing to do Arts/Law, did not envisage ending up as a solicitor but rather envisaged working in the media once she had qualified.

8    Senior Counsel for the appellant contended that the economic loss should be calculated on the basis that a solicitor would earn, after an initial period, approximately $1,500 per week. The appellant had earned approximately $350 per week in her shop assistant and waitressing roles. That sum represented her residual earning capacity post-accident. Accordingly, her future economic loss should be calculated as a weekly loss of the difference between $1,500 and $350. That contention was rejected by the trial Judge. 9    In finding that the loss of future earning capacity was $300 per week, the trial Judge accepted that there were various types of work which the appellant could not do. He found that she could not really cope with shop assistant's or bar work, but recognised that because of her intelligence the likelihood was that she would in future not be engaged on a permanent basis in such work. He recognised her physical and intellectual deficits resulting from the injuries but assessed her as being a person of intelligence and determination who would surmount the intellectual problems she faced, whilst recognising that she nonetheless suffered from significant physical injuries which will result in her having difficulties of a physical nature in the future. 10    There was no material before the trial Judge regarding future economic loss other than that relating to the future earnings of a solicitor. There is no material of an empirical nature to ground the trial Judge's assessment of an economic loss of $300 per week. However, once it is accepted that although the appellant would, apart from the accident, have completed an Arts/Law course and then obtained employment in the media industry, rather than as a lawyer, there is no basis for suggesting that her future economic loss or loss of earning capacity was that suffered by her not becoming legally qualified and practicing as a solicitor. The trial Judge found it was unlikely she would practice as a solicitor. There is no basis for inferring that, had she qualified as a solicitor and then obtained employment in the media industry, her income would have equated with that of a solicitor. She may well yet obtain employment in the media industry with a Visual Communications degree rather than an Arts/Law degree. There was no material before the trial Judge to indicate the earnings of a person such as the appellant in the media industry, be those earnings more or less than those of a solicitor. 11    It follows that there is the assessment of an experienced trial Judge who had the advantage of seeing the appellant and assessing her physical and intellectual attributes and who assessed her future economic loss, being diminution in earning capacity, at $300 per week. It has not been demonstrated that the trial Judge acted upon any error of principle or misapprehension of the facts. I do not think, in those circumstances, that it can be said that the assessment made by the trial Judge was so wholly erroneous as to require this Court to disturb his finding of future economic loss. See Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362 at 369; Moran v McMahon (1985) 3 NSWLR 700 at 718. 12 In my opinion the appeal should be dismissed with costs. 13 MEAGHER JA: I agree with Cole AJA 14    FITZGERALD JA: The appellant is a fine young woman of considerable talent who was very badly injured. She has by her strength of character and determination minimised the adverse consequences of her injuries at least temporarily. Nonetheless, she has a considerable loss of earning capacity which will continue throughout her working life, which extends decades into the future. Further, there is at least a real possibility that because of her injuries she will, in due course, be unable to work and earn at all. 15    Although it is not possible to identify a specific error in the trial Judge's reasoning process, and the circumstances are such as to necessitate judicial conjecture, I am of the opinion that an assessment of lost earning capacity based on $300 per week was unreasonably low and cannot be supported. There is no purpose in further elaboration in a dissenting opinion. I would allow the appeal with costs. 16    MEAGHER JA: The order of the Court therefore is that the appeal is dismissed with costs.

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