Thiess Properties Pty Ltd v Page

[1980] FCA 124

Re: THIESS PROPERTIES PTY. LTD.
And: MONTAGUE PAGE
No. NTG 32 of 1979
Negligence
31 ALR 430

COURT

IN THE FEDERAL COURT OF AUSTRALIA

THE NORTHERN TERRITORY OF AUSTRALIA REGISTRY
GENERAL DIVISION
Forster J.
McGregor J.
Sheppard J.

CATCHWORDS

Negligence - damages for personal injury - appeal against primary Judge's assessment - application of Cullen v. Trappell (1980) 54 A.L.J.R. 295 - claim that no evidence of impariment of earning capacity - deficiency of evidence to quantify wage loss said to preclude recovery - reliance on Allan v. Loadsman (1975) 2 N.S.W.L.R. 789 - Yammine v. Kalwy (1979) 2 N.S.W.L.R. 151 referred to - no other question of principle involved - review, in the light of Cullen v. Trappell, of assessment of damages made by trial Judge.

HEARING

DARWIN

#DATE 2:9:1980

JUDGE1

In this matter I have had the advantage of reading the Reasons for Judgment of McGregor J. and Sheppard J. I find myself in agreement with Sheppard J. and would dismiss the appeal with costs and dismiss the cross-appeal with no order as to its costs.

There is, as it seems to me, a tendency to give the calculations which a judge must make in order to arrive at an assessment of damages a degree of precision and prominence which no-one engaged in assessing damages would claim. So many factors are unknown and uncertain and whereas some may be estimated with some precision others are not capable of any sort of precise assessment. In the present case I am inclined to think that his Honour's assessment of damages to be attributed to pain and suffering and loss of amenities of life was somewhat low and that his assessment of future economic loss may have been somewhat high, bearing in mind the respondent's residual capacity and the effect of Cullen v. Trappell (1980) 54 A.L.J.R. 295. Taking all aspects of damages together, I am quite unable to find that his Honour's assessment as a whole was manifestly excessive or indeed excessive at all.

I adopt with very great respect the words of Barwick C.J. in Wilson v. Peisley (1976) 50 A.L.J.R. 207 at 209 -

"The setting aside of an award of damages in a trial which has not been irregular or unfair, and where there is neither challenge to the findings of fact made by the trial judge nor any demonstrated misconception of the evidence should, in my opinion, be a most unusual event, to occur only in circumstances where the disproportion between injury and award of damages is so great as to make the award quite unreasonable, indeed outrageous, in the circumstances, whether by being too great or too small; and therefore of itself a demonstration of error present though otherwise undisclosed. The less ponderable the elements of the damages under consideration, the less likely will there be a case for setting aside an award by a judge who has not overlooked any significant fact at the end of a trial not blemished by error or irregularity." If his Honour made an error based upon the residual capacity of the respondent, and I am not satisfied that he did, it was an error of degree about which there may easily be two opposite opinions. It is hardly a manifest error. Even if it was such an error it has, in my view, to be balanced by an under-assessment with respect to pain, suffering and loss of amenities of life.

JUDGE2

THIESS PROPERTIES PTY. LIMITED for convenience to be referred to hereafter as the defendant, appeals against a decision handed down on the 7 December 1979 in respect of a hearing which had occupied some four days commencing on 7 November 1979.

The action was one in which MONTAGUE PAGE (Plaintiff had claimed damages for personal injury suffered by him due to the negligence of his employer, the Defendant, in respect of certain events occurring on the 6 December 1976.

It is not necessary to refer to those facts since a finding by the learned trial Judge in favour of the plaintiff on that issue is not challenged in this appeal.

The plaintiff recovered damages in the sum of $87,309.00 made up as follows:-

Pain and suffering and loss of amenities (including allowance for costs of future operative treatment) $15,000.00 Loss of earning capacity to date

of trial $27,000.00

Less compensation

payments received

(Exhibit P11) 14,691.00 12,309.00 Impairment of future earning

capacity 60,000.00 ---------- $87,309.00 ----------

Defendant has appealed on the ground that the amount of the damages is manifestly excessive.

Initially the defendant sought to challenge the judgment contending there was no evidence to support a finding that the plaintiff would, if there had been no accident, have remained in the Northern Territory for three years after the date of injury; and that therefore the component of damages of $27,000.00 referred to above could not be justified. In addition, in respect of the same amount and pursuant to an amendment of the Notice of Appeal made immediately before argument was entered upon, it was sought to argue that there was no "relevant" evidence of the wage that could have been earned in that period by the plaintiff after he was injured; and therefore, so the argument ran, a further reason existed as to why the learned trial Judge should not have found the sum of $27,000.00 in respect of the component of pre-trial loss. Appellant relied on Allan v. Loadsman (1975) 2 N.S.W.L.R. 789 for the submission that if a party seeks to claim an economic loss by reference to a differential, i.e. a contrast of pre-injury earnings with post accident residual earning ability, the party was bound to prove the differential; failing which he could recover only a nominal sum for that aspect of his claim. Appellant argued that respondent, though still with a residual capacity, did not produce evidence as to what he could earn before the trial (but after the injury). He submitted that even though there was evidence of pre-injury earnings, there was no evidence of a figure which quantified or enabled the trial judge to quantify earnings which may have been earned after the injury, i.e. on which the trial judge could come to a finding on a differential. Inasmuch as Allan v. Loadsman did give support, or was thought to have given support to such a proposition, the proposition or misunderstanding has been negated or corrected or not followed in such cases as Baird v. Robert 1977 2 N.S.W.L.R. 389, 397 et seq., Kealley v. Jones 1979 1 N.S.W.L.R. 723 at 733-734 and Yammine v. Kalwy 1979 2 N.S.W.L.R. 151 at 155. Insofar as there was a failure to present evidence which could supply material to be used to quantify a loss, the respondent, in my opinion, is not thereby disentitled from recovery; or restricted to a nominal award.

It will be seen that these two grounds sought to question the sum of $27,000.00 mentioned. Defendant also sought to challenge the amount awarded for future economic loss. A further amendment, during the course of the trial, was allowed to the defendant at the request of his Counsel. This amendment, in effect, is designed to attack the total quantum of the judgment as being unjustifiably large according to applicable principles.

The actual amendment sought was framed in the words or to the following effect - "The amount awarded for past and future economic loss is unreasonably excessive."

It will assist in a consideration of the amount awarded as damages to set out the plaintiff's history up to the date of the accident.

The plaintiff was born on the 26 November 1934. He attended school at Port Lincoln reaching the standard of Grade VII. After that he worked on farms doing general farm labourer's work including fruit picking. For a period of years he worked as a storeman and packer and conducted a mixed business in Port Adelaide.

In 1974 he left this business, travelled to Donnybrook in Western Australia and there worked fruit picking for some months. Later he was employed by Exmouth Shire Council installing concrete footpaths. Other work he did with the Council involved driving a tractor, carting water and operating heavy machinery in levelling grounds. His average earnings with the Council were approximately $160 per week gross. Also, in Perth, he worked as a builder's labourer. For some time in Western Australia he worked for the Forestry Department planting seedling

In July 1976 he came to Darwin. His first job was with the Defendant doing general labouring work including the use of a jack hammer, carting timber, steel and assisting with concrete work. In 1976 his average gross wage was approximately $200 per week.

He was engaged on the reconstruction or repair of a house which had been damaged in the cyclone when he fell from a balcony receiving the injuries the subject of this claim.

Findings by his Honour as to the injuries suffered by plaintiff on 6 December 1976 were not the subject of challenge here. These included a severe comminuted fracture of the ulna bone in his left arm with deformity and fracture of the head of the radius there. In the right forearm there was a comminuted fracture of the lower part of the radius close to the wrist.

The plaintiff was taken to Darwin Hospital. He was operated on on the same day and there was carried out a closed manipulation of the fracture of the right radius and the fracture of the left ulna. The right arm below the elbow was enclosed in plaster and, on the left side, he was given what is described as a back slab. He remained in Hospital and his limbs were repeatedly x-rayed so that the position of the fractures could be observed. On the 21 December 1976 the left arm was the subject of a further procedure viz. open reduction and internal fixation by Rush pin, in which operation the head of the left radius was excised. He then underwent physiotherapy and supportive treatment. He was discharged from hospital on the 19 January 1977. His Honour noted there was one admission to hospital for a further day in April 1977 when a minor procedure was carried out.

His Honour made findings about the plaintiff's disabilities which also were not challenged on appeal. He said -

"It was soon obvious there would be serious disabilities. Movement of the left elbow joint is now severely restricted as is movement of the lower right arm. The disabilities apparent in June 1977 are set out in Mr. Mahajani's report (ex. P.2) and the surgeon then predicted pain and arthritis would be involved. The elbow then had and still has very limited range of movement. Upon demonstration in court he had little flexion past the right angle and extension was very limited. As a result of the shattering of the bone the plaintiff's left arm remains in a permanently flexed position and he has some limitation of upward movement of the shoulder. The disability is gross, and the plaintiff is unable to do many things with that arm. Mr. Mahajani predicts pain and progressive arthritis which he believes may necessitate operative treatment in the future. He mentioned either arthroplasty or arthrodesis. Mr. Gray, the orthopaedic specialist called by the defendant made a thorough examination of the plaintiff on 14 February, 1978 and again on 2 November, 1979. He found some limitation of abduction in the left shoulder and some creaking, left elbow movements limited from 45DEG to 90DEG associated with pain at extremes of movement. In the right wrist there was loss of about one half of flexion and extension, supination was limited by about 25% and pronation by about 50%. Movement of the left elbow was more limited upon the second consultation than upon the first. Mr. Gray also believes arthritis is already established in both the left elbow joint and the right wrist. He does not envisage dramatic deterioration but he expressed the view that if pain becomes a predominant feature, fusion of the right wrist will eliminate pain and fusion of the left elbow joint will result in a more satisfactory (but fixed) position of the left arm being obtained. This could increase the value of the arm to the plaintiff."

His Honour expressed his conclusion as follows:-

"I find on the probabilities that there will be some, but not gross, arthritic development in the joints adjacent to the fractures, but I do not find that the present very great limitation upon the plaintiff's working capacity will be materially increased. If arthrodesis of the left elbow is carried out, the arm's utility may in fact be slightly increased. For a man who has depended upon his physical fitness to earn his livelihood, the consequences of this fall were drastic. He is right handed, which is fortunate, but as there is some lack of strength and stiffness and susceptibility to pain in the right wrist, it cannot be used to compensate for the more limiting injury to the left arm. I agree that the plaintiff has a capacity for light work, but it would have to be work in a very special field where hand or arm agility is not required. In view of his age I doubt whether he could be expected to work in the transport industry and I have accepted the evidence of the witness Dennis Elliott who has described what is required of men working in courier services and the like. Full time work in this capacity would be beyond the plaintiff; nor could one confidently predict his capacity to drive a cab, lift luggage and the like. The plaintiff worked in his own business as a grocer for some years. He clearly retains an interest in this field of work. Having viewed the films of the plaintiff, introduced into evidence, I am satisfied that he is an active individual and I believe he will probably find a niche. I do not regard him as totally incapacitated but his capacity to earn comparatively high wages in heavy and variable work fields has been destroyed. I have endeavoured to make allowance for the pain and discomfort (which continues and will continue due to arthritis), for the loss of amenities, the loss of enjoyment of life and the loss of the plaintiff's ability to fully exploit his interests including past recreational interests such as surfing and dancing. I take into account the apprehension the plaintiff experiences concerning stumbling and I do not overlook that domestically he cares not only for himself, but for his son who is mentally retarded. He is not one who can sit back in the home whilst others do the domestic chores. . . . . The plaintiff is not in my view a lazy man. I believe he maintains a reasonable morale and as I have said, I do not regard him as either unemployable or totally incapacitated for work."

It is necessary to say something about the first two grounds of appeal. In my view, there was some evidence and material from which an inference could be drawn supporting the finding that the plaintiff would or might remain in the Northern Territory for a period of three years after the date of the injury; in fact, even though an injured man unable to work, he remained here until, on the uncontradicted evidence, so I am informed, he left the Territory in November 1978. It is reasonable inference that a person in such a condition remaining so long would have had even more motive or reason to have continued his stay for an even longer time and up to three years had he the incentive of constant and highly remunerative work within his capability.

Further, having regard to the uncontradicted evidence of what the plaintiff did earn up to and including the date of his injury, the similarly uncontradicted evidence of Mr. Gillian as to how the base rate and average overtime of the person described as "Mr. Average", being a typical builder's labourer could have earned up to and including the end of 1979, there is ample evidence from which his Honour might have concluded that plaintiff might have continued to earn a net wage of approximately $180 per week or $9,000.00 per year.

The learned trial Judge who saw the plaintiff in the witness box and heard in detail the account of his work history, stated that he was not a lazy man; that he found him to be a straight forward person. He was entitled to assess damages on the basis that the plaintiff would have continued in the Territory for the period mentioned. In my opinion the amount in the judgment attributed to the pre-trial loss of earning capacity was justifiable.

I turn now to the sum awarded for impairment of future earning capacity, viz. $60,000. His Honour's findings which bear more particularly on this aspect of the decision, have been quoted.

His Honour made a finding to which earlier I referred but which can be repeated -

"The plaintiff is not in my view a lazy man. I believe he maintains a reasonable morale and as I have said, I do not regard him as either unemployable or totally incapacitated for work."

Later he said :- (427)

"As to the future, the plaintiff being a person who has worked in many fields in many places it is not practicable to assess general damages for loss of future earning capacity with any degree of precision. It has been a substantial, but not a total loss, and the plainiff's age does not assist him. Save for his accident injuries, the plaintiff, a slightly built man, appears in good condition. One should assume in my view that he would have continued active work in some employment requiring bodily fitness for twenty years or thereabouts, but not in the heavier type industries where high wage rates reflect to some extent the effort required. I have evidence as to wage rates for persons working in big stores in Darwin and as to employees working in the lighter transport industry in delivery work. These do not help me greatly as it is doubtful whether the plaintiff will ever work in those fields. In this situation it seems to me that the assessment of general damages for the plaintiff's future loss of earning capacity must be a matter of judgment. In looking to the future I examine damages for loss of earning capacity without regard for liability to tax thereon."

Having regard to the decision in Cullen v. Trappell (H.C. 1 May 1980) and in particular to the judgment of Gibbs J, with whom Stephen, Mason and Wilson JJ agreed, I consider that any lump sum awarded for future loss of earning capacity should take into account the "notional" tax which would be derived from investment of that sum. If I was to follow the course adopted by the learned trial Judge, it may be that the sum he found to the extent that it was arrived at without regard to income tax, was an underprovision.

However, his Honour's judgment recognizes that for the rest of his working life "twenty years or thereabouts" the plaintiff would not always have continued - ". . . . .in the heavier type industries where high wages reflect to some extent the effort required."

There were necessarily factors difficult of assessment in the task with which the learned trial Judge has grappled, viz. the length of time the plaintiff would have stayed in the Northern Territory, where there is reason to infer wages of persons in the building trade were higher than elsewhere; the industry itself which is notoriously fluctuant, and its condition in South Australia to which plaintiff might have been expected to return. There was no evidence upon the last mentioned matter.

The difficulty which a Court of Appeal has when considering an award of damages where it could be said that it is made up from elements which are to some extent imponderable or "less ponderable" have been noticed in Wilson v. Peisley (1976) 50 A.L.J.R. 206 at 209. Nevertheless the majority judgment in Warren v. Coombs 23 A.L.R. 405 Gibbs ACJ, Jacobs and Murphy JJ indicates some of the circumstances at least when an appeal court should interfere with the decision of a judge at first instance. Their Honours said (P. 423) :-

". . . . .we can see no justification for holding that an appellate Court which after having carefully considered the judgment of the trial Judge has decided that he was wrong in drawing inferences from established facts should nevertheless uphold his erroneous decision."

At the date of the judgment (7 December 1979) the plaintiff born on 26 November 1934, was aged 45 years. Assuming he had a working life allowing for vicissitudes of about twenty years as the trial Judge found, it is possible to test the value of $60,000. It would seem that to allow twenty years anyway was to form a generous estimate of the plaintiff's likely continuing capacity in the industry. However, in evaluating the appropriateness of the sum awarded for the loss suffered it has been usual to use the the 6% tables. One way of taking account of the incidence of income tax (as Cullen's case cited above indicates should be done) is to use 5% tables, thus increasing the size of the capital sum. This approach adopted by the learned trial Judge, Sheppard J. in Yammine v. Kalwy was upheld by the Court of Appeal of New South Wales at 1979 2 N.S.W.L.R. 151 at 156 and 159.

It appears that $60,000 invested at 5% would produce in the order of $90.00 per week for the period mentioned assuming drawn upon week by week and with the total sum exhausted at the end of the period.

These propositions do not intend to overlook the fact that the plaintiff may prefer to invest this amount or some of it in a business.

However, it might be used, in my opinion, it was manifestly excessive for the plaintiff with his injuries, age and remaining capabilities. Since it is my view that the remaining components of the judgment separately considered represented fair compensation individually, it follows that, in my view, the appeal should be upheld on the ground that it was such an unreasonable provision as to invite interference.

I consider that the case is one in which I ought for myself find the appropriate figure. On a review of all the evidence with due regard to the arguments of Counsel, and precision being impossible, I find this to be $50,000.00.

The appellant has, therefore, succeeded on a ground not taken in the Notice of Appeal and only added by amendment after the difficulties facing his client with the Notice of Appeal as filed were realised. The defendant has failed to make out the grounds which were the subject of the appeal initially. In the circumstances my view is that each side should pay its own costs of the appeal. The Order I would propose is that -

1. Appeal be upheld.



2. Amount of the judgment is varied by reducing it to $77,309.00

3. Each party to pay its own costs of the appeal.

JUDGE3

The appellant (the defendant in the action) appeals against the judgment of Muirhead J. by which the respondent (the plaintiff in the action) was awarded $87,309 for damages for personal injuries. The appellant was the respondent's employer. The respondent alleged that he was injured in the course of his employment as the result of the appellant's negligence. No appeal is brought against the finding of negligence. The appeal relates only to the amount of damages found by his Honour.

The amount of the judgment was made up as follows:

Damages for loss of earning capacity to

date of judgment (7 December 1979) $27,000

Less: Worker's compensation payments 14,691 12,309 ------



Damages for impairment of future

earning capacity< 60,000

Damages for pain and suffering and loss

of amenities of life (including allowance

for cost of future operative treatment) 15,000 ------- $87,309 -------

The appellant challenges the amounts awarded for loss of earning capacity to date of judgment and impairment of future earning capacity.

Originally the grounds of appeal did not include a ground that the amount of damages was in all the circumstances excessive. The appeal was based upon the failure of the respondent to lead evidence as to what he might be expected to earn in vocations which are within his capacity and ability, it being agreed that he has not suffered a total destruction of his earning capacity but that he is fit for some restricted forms of work. The appellant relied upon the decision of the Court of Appeal of New South Wales in Allan v. Loadsman (1975) 2 N.S.W.L.R. 789. Additionally, the appellant challenged two findings of the learned trial judge namely, that the respondent, had he not been injured, would have remained working in the Northern Territory for three years after the accident and that the respondent, but for his injuries, would have continued to work for about 20 years after the date of judgment. It was said there was no evidence as to the period of time the respondent would have continued to work.

When the hearing of the appeal commenced an application was made to amend the grounds of appeal. In one respect the application was only formal and resulted in it being clearer than it was from the original notice of appeal that the appellant intended to rely on Allan v. Loadsman. The second respect in which it was sought to amend the notice of appeal was to enable the appellant to rely upon the decision of the High Court in Cullen v. Trappell (1980) 54 A.L.J.R. 295, that decision having been given after the judgment of the learned trial judge. Counsel for the respondent sought, as a condition of any leave given the appellant to amend its grounds of appeal, that the respondent be given leave to cross appeal upon the ground that the amount of damages awarded by his Honour was inadequate. We decided to allow the amendments sought by the appellant and at that stage decided against allowing the respondent to cross appeal out of time. It is to be observed that the appellant had still not up to that point of time raised the usual ground of appeal that the amount of damages was excessive. But subsequently, after there had occurred a general discussion about the real effect of the decision in Allan v. Loadsman, counsel for the appellant applied further to amend the grounds of appeal by adding a ground to the effect that the amount awarded for past and future economic loss was "unreasonably excessive". We decided to allow that amendment but, as a condition of allowing it, permitted the respondent to cross appeal out of time on the ground that the amount awarded was manifestly inadequate.

In the upshot the appellant attacked the findings of fact made by his Honour as to the length of time the respondent would have continued to work in the Territory and as to how long he would, but for his injuries, have continued to work in the future. He maintained his submission based upon Allan v. Loadsman. He claimed that the damages were in any event excessive, and, of course, said that this was partly so because his Honour had assessed damages upon the basis of Atlas Tiles Limited v. Briers (1978) 52 A.L.J.R. 707.

Before proceeding to deal with the various submissions that were made it is necessary to set out some of the facts of the matter. The respondent was born on 26 November, 1934. The injury in respect of which he sued occurred on 6 December, 1976, the respondent then being 42 years of age. His Honour's judgment is dated 7 December, 1979, the respondent then being 45 years old. It is to be observed that there is a period of almost exactly three years between the date of the injury and the date of the judgment appealed from.

The respondent attended school in South Australia. He did not reach Intermediate standard. He is not equipped with any trade or other qualification. He has had a variety of jobs. At one stage he ran a mixed business in Adelaide. Apart from that his jobs have usually been of the labouring kind. He came to Darwin in July 1976 and obtained employment with the appellant. He did general labouring work and at the time of his injury was employed in restoring houses damaged by the cyclone.

As a result of the accident he suffered fractures of bones in both forearms. The most serious injuries were to his left forearm. There was a severe comminuted fracture of the ulna close to the elbow with deformity and a fracture of the head of the radius. In his right arm the respondent suffered a comminuted fracture of the lower part of the radius close to the right wrist. The respondent is right handed. The consequences of these injuries are set out in that part of his Honour's judgment quoted by McGregor J. I do not repeat them.

It is common ground that the respondent is no longer fit for the work of a builder's labourer nor for any other heavy labouring work. His condition had stabilised about a year before the action was heard. It was agreed by the doctors that his earning capacity was not destroyed, although severely impaired. But difficulty was obviously experienced by both doctors who were called as well as by lay witnesses experienced in various forms of work in pin-pointing what sort of work was really available to the respondent. These witnesses comprised a trade union official, a store manager and a representative of the appellant. The difficulties arise whether the respondent seeks work in Darwin or elsewhere. He is probably fit for some classes of driving jobs so long as they do not involve him, as well, in carrying parcels or other articles which are at all heavy. He could also work in a shop and himself contemplates that he might operate a gift shop in Adelaide.

The respondent did not give evidence as to the length of time he might have remained in Darwin had he not been injured. In fact he remained for about two years after the accident but his doing so may be explicable upon the basis that Darwin was the place where he underwent treatment for his injuries.

The evidence discloses that he was earning sums of the order of $240 to $250 per week in the period of three months prior to his injury. After tax the sum is of the order of $180 to $185 per week. Although his Honour does not say so in his judgment it would appear that he reached his figure of $27,000 for pre-trial loss of earning capacity by assuming a weekly loss of $180 or a little more for the entirety of the period of three years which is involved.

It is firstly claimed by the appellant that this conclusion was not open to his Honour because there was no evidence of what the respondent, when his condition stabilised about two years before the trial, could have earned in employment which was within his capacity. There is no evidence as to what his earnings in such forms of work might have been except some evidence of what was earned by shop assistants.

The appellant's submission is based, as has been said, on Allan v. Loadsman. It is made not only in respect of the amount assessed for pre-trial loss of earning capacity, but also in respect of the claim made by the respondent for future loss of earning capacity. It will be convenient to dispose of the submission now. What I am about to say applies equally to both claims.

To some Allan v. Loadsman appeared to lay down a principle that where, in the case of a partially incapacitated plaintiff, there was no evidence of what he was able to earn in employment within his capacity, there could be no recovery because the extent of the plaintiff's loss could not be quantified. If that were the ratio of the decision, I would myself have substantial hesitation in following it, if only for the reason that I would not have though such a matter could be the subject of any principle of law. The question in all cases must be whether a plaintiff has established those matters upon which his entitlement to recover depends. I do not need to develop the matter further, however, because the view I have just expressed is plainly the prevailing view of the Court of Appeal. In Yammine v. Kalwy (1979) 2 N.S.W.L.R.151 Reynolds, J.A. dealt with a submission similar to the one here made that there was no evidence of what the respondent plaintiff might be able to earn in his injured state so that there was no material upon which the judge could quantify any loss of capacity. Nominal damages only were said to be recoverable. His Honour said (p.155): "This submission has its origin in some statements in this Court made in a case of Allan v. Loadsman. This is not the first occasion that observations of particular relevance in that decision have been relied upon in support of a very wide principle of the kind now pressed. They have consistently been rejected, and Allan v. Loadsman should not be regarded as authority for such an all-embracing principle. Of course, in seeking to quantify his damages, a plaintiff could be well advised to offer such evidence in many cases, and likewise a defendant, in seeking to cut down the damage, might similarly be well advised to tender such evidence; neither, in the absence of such evidence, could complain, to the same effect, at any quantification arrived at. This, however, is far from asserting that in the absence of such evidence only nominal damages is appropriate. In Kealley v. Jones (1979)1 N.S.W.L.R.723 at 732, et seq.) the President dealt with this matter in terms with which I express respectful agreement. In my opinion, where a plaintiff has suffered a significantly disabling injury which obviously affects the range and nature of the work he can, therefore, perform, a tribunal of fact can, without specific evidence as to what other persons with that kind of disability can "earn, make a judgment and assessment on a percentage basis or otherwise, of the value of the lost capacity. Allan v. Loadsman should not be understood as deciding otherwise."

Hope, J.A. agreed with what Reynolds, J.A. had said (p.156). I would add my respectful agreement with it also. I would also indicate respectful agreement with what was said by Mahoney, J.A. (pp.156-158). It is to be observed that Mahoney, J.A. wrote the principal judgment in Allan v. Loadsman.

It follows from what I have said that Allan v. Loadsman does not have in New South Wales the significance contended for by counsel for the appellant. For the reasons given by Reynolds, J.A. in Yammine v. Kalwy it ought not to have that significance anywhere else. The submission based upon Allan v. Loadsman is one which I would therefore reject.

It remains to consider whether the award of $27,000 for pre-trial loss of earning capacity was in the circumstances excessive. Evidence was given that earnings in the Northern Territory have substantially increased since December 1976. Persons employed as builders' labourers, as was the respondent, could at the date of trial earn with overtime almost $400 per week before deduction of income tax. The respondent did work overtime as a matter of regularity. His Honour's approach was to take the equivalent, or thereabouts, of what the respondent was earning at the date of his injury and to project that for three years. It was suggested that that left out a number of factors. The respondent may not have remained in Darwin for the three years selected by his Honour and might have returned to lesser paid employment in one of the southern states. He may not have worked the overtime which was referred to. He might have been affected by downturns in the building industry particularly if he had left Darwin, where the building industry seems to have been buoyant throughout the period; and his Honour's calculations did not allow for the fact that in the latter part of the period the respondent had some capacity to earn money in restricted forms of work. Against that last matter it must be mentioned that the appellant paid the respondent worker's compensation up to about the time of the trial. In my opinion his Honour by taking the respondent's earning rate in the period of three months prior to judgment allowed for such discounts as ought to have been made for the reasons relied upon by the appellant. I do not regard the amount as excessive and I would not be disposed to disturb that part of the award of damages. On this approach his Honour's finding that the respondent, had he not been injured, would have remained in the Northern Territory for three years is not critical, but it is my view that it was a finding which it was open to him, on the evidence, to make.

A consideration of the amount awarded for post-judgment loss of earning capacity is made difficult by the fact that the decision of the High Court in Cullen v. Trappell was given after his Honour's judgment. His Honour, correctly, bearing in mind the date he decided the matter, left income tax out of account. We must see that it is taken into account, but along the lines proposed by Gibbs J. in Cullen v. Trappell 54 A.L.J.R. at p.300. In other words, although we must deal in net figures we must make some allowance for the fact that income tax will be paid, at least notionally, on the return derived from any investments into which the judgment moneys are put. Upon the basis of the evidence in the present case we could do no more, in order to make that allowance, than to have recourse to the 5 per cent tables rather than to tables providing for a higher rate of interest.

But it was his Honour's view that the case was not one which readily lent itself to assessment by reference to any tables. I agree with this view. Nevertheless, it is not unhelpful to have regard to the tables to ascertain what sort of weekly sum particular capital sums would yield.

His Honour thought that the respondent had a working life left to him of 20 years. Clearly he was entitled so to conclude. It would be at the end of that period that the respondent would reach what is accepted in the community as a conventional retiring age. If one assumed an interest rate of 5 per cent per annum, $60,000 would purchase now an annuity of $90 per week or a little more for that period. Upon the basis of Mr. Gillian's evidence plainly accepted by his Honour a builder's labourer employed in the Northern Territory at the date of trial would then have been earning with some overtime almost $400 per week. The average weekly earnings in the community were then in excess of $200. If one takes the view that the respondent would not have remained in Darwin but returned to less well paid employment in the south, one would think it not unlikely that he would have continued to earn a gross weekly figure of the order of $300, say a net figure of just over $200. The effect of the injuries he has suffered is severe. He is likely to have long periods when he will be out of work and he will plainly, when he has work, be in work which is less well paid. In those circumstances I do not consider that an allowance of $90 per week for the balance of the respondent's working life could be regarded as excessive.

But there is one other factor so far left out of account. It is his Honour's award of $15,000 for pain, suffering and loss of amenities of life. It includes an allowance for the cost of future operative treatment. In my opinion the figure is too low. A more appropriate figure would have been $25,000. As in most cases the process of assessment of damages will be approached in different ways by different judges. Because of the decision in Cullen v. Trappell it has been necessary to carry out something of a re-assessment of the claim here. If that exercise had been done without regard to the learned primary judge's reasons for judgment the result achieved may have been, to a degree, different. But the award must be looked at as a whole. I am satisfied that if I had had to perform the task unaided by the judgment appealed from I would have reached a figure little different from that decided upon by his Honour. In all the circumstances I think that the award represents reasonable compensation to the respondent and ought not to be disturbed. I would dismiss the appeal and the cross appeal. The appellant should pay the costs of the appeal. The time occupied in the argument on the cross appeal was minimal. I would make no order as to the costs of the cross appeal.