BONDIN v LAMARO

DAMAGES - quantum - economic loss - trial judge awarded damages for past economic loss for initial 8 week period - whether further damages for past economic loss and damages for future economic loss should have been awarded - held: they should - no question of principle.

2. Set aside the judgment of Judge McDevitt except as to liability and costs.

3. In lieu thereof substitute judgment for the plaintiff for the amount awarded by the trial judge together with a figure of $50,000 for future general damages, a futher $45,000 for past economic loss together with interest to be calculated by the parties and a further $140,000 for future economic loss. This amount to an additional $225,000 together with an uncalculated amount for interest.

4. The respondent is to pay the appellant's costs of the appeal up to and including 11 October 1994.

5. The appellant is to pay the respondent's costs incurred after 11 October 1994 that would not have been incurred if the appeal had been heard and determined that day.

7. The parties are to bring in short minutes to give effect to these orders.

Priestley JA I ask Mr Justice Handley to give his reasons first.

Handley JA This is an appeal by a plaintiff from a judgment of his Honour Judge McDevitt given in the District Court on 11 June 1993. There was no dispute as to liability and his Honour awarded the plaintiff a verdict including interest of $113,566.59.

The plaintiff was pregnant at the time of the accident and suffered internal injuries which had significant complications for her and her unborn child. The Judge made clear and helpful findings of fact which he set out at 391 to 392 of his reasons which I largely adopt and which I will briefly summarise.

The plaintiff was injured on 1 August 1981 and suffered fractured ribs and an injured spleen and pancreas. On 21 August her spleen ruptured and as a result of these complications she was admitted to Westmead Hospital where her spleen was removed together with part of her pancreas. She suffered hypotension with

the further result that her unborn child suffered brain damage and her son was born prematurely with cerebral palsy. The plaintiff suffered distress and anxiety about the welfare of her son until he died of broncho pneumonia at the age of some nineteen months. The plaintiff developed deep depression, anxiety, palpitations, shortness of breath and a chronic unresolved grief reaction. Her symptoms of pain were psychologically based and caused but nevertheless real and her reaction was made worse by her anxiety.

The judge found that the plaintiffs capacity for work had been entirely destroyed between the date of the motor vehicle accident and the date when she clinically recovered, which he fixed at 18 November 1982. He accepted the evidence of Dr Torrevillas that the death of her son in July 1983 contributed to her pre-existing anxiety and led to reactive depression from which she suffered. His Honour concluded, accepting the evidence of Dr Barclay, that the plaintiff was suffering from a genuine psychiatric illness.

The judge correctly directed himself that in an action for damages for physical injury a plaintiff who has suffered physical injury is entitled to recover for any consequential psychiatric illness. However, his Honour declined to award damages for the plaintiffs psychiatric illness and' its consequences because he took the view that that illness was not reasonably foreseeable. In my opinion and with all respect, his Honour fell into error in holding that the plaintiff s reactive depression was not a reasonably foreseeable consequence of the motor vehicle accident.

The well-established general principle is that a plaintiff is entitled to recover for all damage which causally flows from the tort provided it falls within the general class of conditions which might reasonably be expected to flow from that tort. This principle is well established and I need only refer to the decision in Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383 as authority for this proposition.

It follows that this Court must intervene and if possible, re-assess the plaintiff's damages. There is no difficulty in this Court undertaking such a re-assessment. The plaintiff s credit was not challenged and the judge accepted her as an honest witness within the limits caused by her psychiatric problems. There appears to be little dispute in the medical evidence.

The Judge found that the child's illness and death were not causally related to the motor vehicle accident, in other words, that his premature birth and his pre-natal trauma leading to brain damage and cerebral palsy were not causative of his death nineteen months later from broncho pneumonia and also that his was not causally related to the physical, mental and emotional injuries sustained by his mother.

However it is well established that the existence of other contributory causes does not exclude either legal causation or legal responsibility. So much was recently re-affirmed by the High Court in March v E and M H Stramare Pty Ltd (1991) 171 CLR 506 at 509.

It is clear from his Honour's findings that the appellant's reaction to the death of her son was due in part to the effects on her of the motor vehicle accident and the consequent state of anxiety and depression from which she suffered. This situation created in her a fragile personality which was then affected by her son's death and her guilt and grief reaction to it. In these circumstances it seems to me that this court should assess damages on the basis that the death of the son at the age of nineteen months was not a new intervening cause which severed the chain of causation between the accident and the plaintiff's condition at the date of trial. See March v Stramare at 517-519.

His Honour awarded the plaintiff general damages amounting to $75,000, half of which he apportioned to the past and half to the future. I should add that the plaintiff was thirty-four at the date of the accident and forty-six at the date of trial. It is not suggested that her life expectancy had been diminished and it is apparent therefore that she has many years in which, on the probabilities, she will continue to suffer from the mental and emotional consequences of the accident and its aftermath.

The task of the Court now is to award an additional sum which, together with the amount awarded by his Honour will represent adequate compensation for the non-economic results of the accident and all its consequences.

A possible view urged on us by Mr Russell was that, on his Honour's findings of fact, the award of $75,000 for general damages represented over compensation and that this Court should therefore allow only a relatively modest increase. Although there is some substance in this submission, it seems to me on the whole that the plaintiff is entitled to a substantial increase in the award for general damages. Looked at objectively and compassionately, this accident and its consequences have substantially ruined the plaintiff s life. I would therefore propose that the award of general damages be increased to $125,000, and in view of the long period in the future in which the plaintiff will continue to suffer from the consequences of this accident, I would propose that the additional $50,000 be awarded solely for the future.

The other components of his Honour's award which are challenged relate to past and future economic loss. Although his Honour found that the plaintiff had clinically recovered from her physical injuries by 18 November 1982, he awarded no economic loss except for the initial eight weeks. I must now assess her economic loss bearing in mind the findings I have made on causation and its continuance, but also bearing in mind the plaintiff s commitment to her son and subsequently to her second daughter. The normal birth date of her son had she carried him to full term was 1 February 1982. He would have turned three in December 1984.

The plaintiff said in chief that she would have attempted to return to the work force from when her son was three or four years old. The first contingency therefore is whether the plaintiff would have been able to resume employment when her son was three or when he was four. The plaintiff also said in chief that she planned to have no further children after her son. In the event she and her husband had a third child, a daughter, but of course this was after her son had died. There was a chance that the plaintiff and her husband may have changed their minds and decided to have a third child anyway and they may also have had an unplanned pregnancy. This gives rise to a second contingency.

The plaintiff agreed in cross-examination that the government pre-school nearby which charged modest fees only took children in the mornings and that while her children were at this pre-school it would have been practically impossible for her to obtain part time work. She also said that while her children were at pre-school she would give them priority in her life. In these circumstances it seems to me that the proper conclusion from her evidence is that she would probably not have been able to return to the work force until her son was at least five. It is of some significance in this regard that this was Jennifer's age when she first went to kindergarten in February 1985.

In these circumstances I would conclude that uninjured, the plaintiff would not have been able to return to the work force until at least February 1985 when her son would have turned five, assuming she had no further children.

The plaintiff also said in cross-examination that she had intended to be a mother who helped her children leave for school in the morning and who would be at home in the afternoon when they returned from school. Fortunately, the local primary school was very close to their home. This meant of course that when she attempted to return to the work force she would have been limited to a part time job from 9 or 9.30am until 3 or 3.30pm located within a reasonable distance of her home. In my opinion, therefore, the appellant has not established any entitlement to past economic loss prior to February 1987.

After that her entitlement for the next few years must be based on loss of part time employment subject to some deduction for the chance that she would have had another child and a further deduction for the risk that a suitable part time job would not always be available within a reasonable distance of her home at Winston Hills. I note that the plaintiff was not cross-examined about her intention of working part time during school holidays, but some further allowance must be made for the chance that she would not have worked for the whole year.

However, there is no reason to think that she would not have been able to return to full time employment after her youngest child started High School. She was not examined or cross-examined about her intentions in this regard but it seems to me that a realistic view would be that the plaintiff would have felt free to enter full time employment once her youngest child had started High School. If her son had survived and had been well enough to attend High School this would have happened by February 1993. I would therefore propose that the appellant be compensated for her economic loss on the basis of a loss of a chance of part time work for up to $306 a week from February 1987 until the date of trial in June 1993. This should be subject to some modest discount for the possibility of another child and the difficulties in obtaining suitable part time employment within reasonable proximity of her home at Winston Hills.

The plaintiff tendered at the trial a schedule of award wage rates for clerical workers for the period from February 1985 to May 1993. This is referred to at 112 of the appeal book and was made available to the court by Mr Poulos QC during his submissions. Without any discounts and on the basis of a thirty hour working week the figures in that schedule would produce an amount of $69,576 up to the date of judgment. The period covered by the award included years of high unemployment and this part of the award must also reflect the other contingencies I have referred to. I do not believe I would be doing the plaintiff an injustice if I were to allow her an additional $45,000 for her past economic loss at the date of judgment reflecting a discount of 25 per cent. This award will also carry interest at the usual rates. I would propose that the parties be directed to bring in short minutes incorporating a calculation of this interest.

I turn now to the award for future economic loss for the period from the date of judgment in June 1993 to the end of the plaintiff s normal working life. This in my opinion should be calculated on the basis that the appellant but for her injuries would have been free to return to full time employment at the probable wage of $315.35 a week which is to be found in the schedule handed up by Mr Poulos QC. The appropriate multiplier on the 3 per cent tables is 598-2. The resulting figure is $188,642. This must be discounted to reflect the usual contingencies and also for the chance that the plaintiff may recover some modest capacity for work either spontaneously or through further rehabilitation at some stage in the future. On the materials available I would not evaluate this chance

at more than 10 per cent. Applying a total discount of 25 per cent and rounding slightly down I would therefore propose that the appellant be awarded $140,000 for future economic loss.

I would therefore propose the following orders: 1. Appeal allowed.

2. Set aside the judgment of Judge McDevitt except as to liability and costs.
3. In lieu thereof substitute judgment for the plaintiff for the amount awarded by the trial judge together with a figure of $50,000 for future general damages, a further $45,000 for past economic loss together with interest to be calculated by the parties and a further $140,000 for future economic loss. This amounts to an additional $225,000 together with an uncalculated amount for interest. 4. The respondent is to pay the appellant's costs of the appeal up to and including 11 October 1994. 5. The appellant is to pay the respondent's costs incurred after 11 October 1994 that would not have been incurred if the appeal had been heard and determined that day. 6. Costs are to be set off. 7. The parties are to bring in short minutes to give effect to these orders.

They are the orders I would propose. I should make it clear that apart from the express variations I have proposed I would not otherwise disturb his Honour's award, so that, for example, his Honour's apportionment of general damages he awarded between past and future and the interest on the past general damages would not be disturbed if the orders I have proposed take effect.

PRIESTLEY JA I agree with the orders proposed by Mr Justice Handley for the reasons he has given.

PRIESTLEY JA The Court's orders will be as proposed by Mr Justice Handley and short minutes are to be brought in by 2.15 pm today.

STOOD DOWN IN THE LIST PRIESTLEY JA In accordance with the reasons given by the Court earlier today the parties have brought in short minutes of the orders to be made. They appear to be appropriate with the addition of 0.6A, which I have written in. The Court makes those orders which I initial and will leave with the papers.

2. Set aside the judgment of Judge McDevitt except as to liability and costs.

3. In lieu thereof substitute judgment for the plaintiff for the amount awarded by the trial judge together with a figure of $50,000 for future general damages, a futher $45,000 for past economic loss together with interest to be calculated by the parties and a further $140,000 for future economic loss. This amount to an additional $225,000 together with an uncalculated amount for interest.

4. The respondent is to pay the appellant's costs of the appeal up to and including 11 October 1994.

5. The appellant is to pay the respondent's costs incurred after 11 October 1994 that would not have been incurred if the appeal had been heard and determined that day.

7. The parties are to bring in short minutes to give effect to these orders.

Counsel for the appellant: J POULOS QC/C HEAZLEWOOD/J BERWICK

Solicitors for the appellant: ROBERT A HANNAM and CO Counsel for the respondent: D J RUSSELL Solicitors for the respondent: GM MEADOWS