Bresatz v Przibilla

The main facts of this case are set out in the judgment of my brother Owen. I need not repeat them. It is easy to understand the difficulty that the learned trial judge felt in assessing damages, for it is almost impossible to arrive at any logically satisfying conclusion in a case like this. Nevertheless, for reasons that I shall give, I consider that his Honour's assessment was erroneously based, inadequate, and that we should amend it.

Dealing first with the case of the wife: The general damages she has suffered include two elements of economic loss that, although not in any exact sense predictable are yet in some degree susceptible of calculation; and they should, I think, be the starting point of any attempt to assess damages. The first of them is the loss that arises from the destruction of the plaintiff's earning capacity, commonly described as a future loss of wages. The second is expenditure that in the future may be expected to be incurred as a direct consequence of the plaintiff's injuries. The amounts which should be awarded under these heads are, of course, not precisely determinable, for some of the relevant factors are at best uncertain inferences. And I appreciate that attempted calculations sometimes only give a pseudo-scientific appearance to what in the last resort is an arbitrary determination, not a necessary conclusion from ascertained fact. Nevertheless, an attempt to calculate damages under these two heads does, I think, provide a basis for making an assessment as well as providing a test of the validity of an assessment appealed from. This is because some figure is arrived at for matters that are in a sense calculable before consideration is given to amounts to be allowed for matters that are wholly insusceptible of calculation such as pain and suffering and the depreciation of the enjoyments of a normal and full life. Yet the sum finally awarded for general damages must be that thought proper for the whole loss; and it is not made up of rigidly separated components. So that in the end there is a wide range within which opinion may differ. And it is this that must make an appeal court hesitate to set aside the opinion of the trial judge.

Turning then to the first head commonly called loss of future earnings - a common method of estimating the loss of prospective earnings is to take the annual earnings at the date of the accident and multiply this by the number of prospective working years lost. Then it is said "the resulting amount must then be scaled down by reason of two considerations, first that a lump sum is being given instead of the various sums over the years, and second that contingencies might have arisen to cut off the earnings before the period of disability would otherwise have come to its end": Mayne & McGregor, Damages (1961) p. 767. The first of the two considerations mentioned does, of course, in every case demand that the product of the initial multiplication must be discounted at some assumed rate of interest to ascertain the present value of the notional future earnings. Nothing here turns upon the individual. This "scaling down" is a mere process of arithmetic applicable to all cases; and there are tables from which the result is readily ascertainable. But the second consideration is altogether different. It is a mistake to suppose that it necessarily involves a "scaling down". What it involves depends, not on arithmetic, but on considering what the future might have held for the particular individual concerned. He might have fallen sick from time to time, been away from work and unpaid. He might have become unemployed and unable to get work. He might have been injured in circumstances in which he would receive no compensation from any source. He might have met an untimely death. Allowance must be made for these "contingencies", or the "vicissitudes of life" as they are glibly called. But this ought not to be done by ignoring the individual case and making some arbitrary subtraction. We were told that in South Australia it is a common practice to subtract twenty-five per cent "for contingencies". Indeed counsel for the appellant, in the calculations he made in support of his claim for higher damages, conceded that this should be done. But he did not explain why. I know of no reason for assuming that everyone who is injured and rendered for a period unable to work would probably in any event have been for a quarter of that period out of work, or away from work and unpaid. No statistics were presented to justify this assumption. Moreover, the generalization, that there must be a "scaling down" for contingencies, seems mistaken. All "contingencies" are not adverse: all "vicissitudes" are not harmful. A particular plaintiff might have had prospects or chances of advancement and increasingly remunerative employment. Why count the possible buffets and ignore the rewards of fortune? Each case depends upon its own facts. In some it may seem that the chance of good fortune might have balanced or even outweighed the risk of bad. With these considerations in mind I turn to the element of loss of future earnings in this case and to what the learned trial judge said on this aspect. The injured woman was forty-four years old at the date of trial. The average expectation of life of a woman of forty-four was stated by the Public Actuary of South Australia to be 32.34 years. The net wages that she was earning immediately before the accident were about £11 10s. 0d. per week. If it be assumed that but for the accident she would have or could have worked to the age of sixty, then, according to the actuary's method of calculation, the capital value of the loss of those earnings (reckoned at five per cent on an annuity basis) was at the date of trial £6,450. His Honour referred to this figure. But he said that it must be reduced. He does not say, however, by how much he reduced it in whatever computations he made in arriving at his assessment of damages. He simply said: "Many possibilities of everyday life had to be reckoned with. The wife's employment might have been terminated without any opportunity to be re-employed, her wages might have been reduced, she might have voluntarily ceased to do other than housework at home, some other mishap or misfortune might have supervened terminating her life or capacity to earn". With respect, I think these remarks suggest that his Honour may at this point have been giving undue weight to factors that might reduce the measurement of the plaintiff's economic loss, and no weight to those that might increase it. True it is that the plaintiff's wages, had she continued in employment, might have gone down in the years ahead. But I think it is at least as probable that they might have gone up. True it is that she might have voluntarily ceased to go to work and devoted herself to household duties. But this seems immaterial, for, although it is common to speak of "loss of earnings", the loss in a case such as this is really the destruction of the capacity to earn. The sum that might have been earned is the measure of that loss. I referred to this in Paff v. Speed [1] . It is true too that, as his Honour said, if this accident had not happened some other mishap or illness might have curtailed the plaintiff's life or diminished her capacity to earn. But the consequences of this possibility can be pushed too far in the case of a person whose expectation of life based on the average of the life tables was what hers was. It is just as possible that she might have lived to the expected age and have had an undiminished capacity for work after the age of sixty. She was before the accident a healthy woman. It seems to me that, everything considered, the chances of the future could not be so clearly foreseen that they demanded any great reduction of the figure for loss of future earnings calculated by the conventional method. A question of importance could arise at this point. That is whether this Court should follow all the reasoning of the Court of Appeal in Oliver v. Ashman [2] and Wise v. Kaye [3] . But, as it chances, it is not necessary to consider that in this case; for it is not necessary to assume that the plaintiff will not live for sixteen years which would bring her to the age of sixty the period taken for the calculation of the loss of wages. She has been most grievously injured. She is learning to adjust herself to the conditions of life as an invalid in a wheelchair. And the medical evidence, although necessarily inconclusive, suggests that with care and attention she might live for perhaps twenty years, and that at least ten years is probable. I am prepared to assume therefore, for the purpose of this part of the estimation of the damages she has suffered that a potential capacity to earn for sixteen years was tortiously destroyed. And taking all circumstances into consideration that should, I think, be assessed at not less than £6,000.

1. (1961) 105 C.L.R. 549, at p. 566. 2. [1962] 2 Q.B. 210. 3. [1962] 1 Q.B. 638.

I pass to the next element, namely the expenses to which the plaintiff will be put in the future in consequence of her injury. Expenses for medical attention, hospital charges, nursing assistance when required and chemists' bills will, it is said, amount to an average of £7 per week. This figure was not disputed. And also it was not disputed that the plaintiff's need for constant attention will require the employment of a woman during the hours when her husband is not there to help her. This, it was not disputed, might be reckoned at eight hours a day at a cost of five shillings an hour, say £14 per week. So that expenses for future medical attention and domestic assistance may reasonably be assessed at £20 per week. This was not really disputed by the respondent. What was disputed was the resultant figure at which counsel for the appellant arrived by assuming that these expenses would go on for twenty years. There should, it was urged, be a considerable reduction for the contingency, indeed it was said the probability, that death long before then would make further expenditure unnecessary. It may be so. But if an estimate of this head of damages is to be anything better than a guess, some period must be assumed. I have taken fifteen years. It was said that whatever sum was arrived at and however arrived at under this head should also be "discounted for contingencies" and again that a reduction of twenty-five per cent would accord with common practice. I can see no basis at all for a commensurate "scaling down" of loss of earnings and future expenses. The contingencies that have to be considered in assessing loss of earnings are those which it is assumed might notionally have befallen the plaintiff had she not been injured and continued at work. The contingencies that may affect future outgoings are of a different order. They are events which may actually occur in the future. The plaintiff may die before the period adopted for the calculation expires: on the other hand she may outlive that period. Perhaps the expenses for medical attention may not prove to be as great as expected: on the other hand they may turn out to be greater. The costs of domestic assistance may go up. The domestic situation could alter as if perchance the husband should die or for some reason cease to be able to care for his wife. Of all the possible contingencies the most likely is perhaps that the plaintiff might die before fifteen years were up because there is in all such cases an ever present risk of some bladder infection. Nevertheless, I do not think there is any firm basis for any "scaling down" of the result of a calculation of £20 per week - which is itself less than the £21 or £22 that the evidence would support - for fifteen years. Discounted at five per cent to get the present value, that yields £10,800. And that amount I therefore think it would be proper to allow under this head.

In addition to the recurring costs of medical attention, chemists' bills and so forth there are some items of equipment such as a special wheelchair, lifting apparatus, to be taken into consideration. The evidence as to the cost of these things is not precise. Some of the more costly items already acquired were paid for by the husband and properly form part of his claim. But it seems reasonable to include a sum of £1,000 in the wife's damages for special equipment and incidental arrangements.

I do not think it necessary to discuss some particular smaller items that were claimed. The only one that requires separate consideration is a sum of £304 paid to bring the plaintiff's mother from Italy. Evidence of this was properly admitted as it explained how the domestic problem created by the wife's incapacity was in part met. The presence of the plaintiff's mother in the home provides her with comfort and is a physical help. In that sense it was proper to take it into consideration. But I do not think his Honour was wrong in refusing to allow the cost of fares as a separate item of special damage. Some observations made in the judgment of this Court in Morgan v. Hosking (unreported [1] ) were referred to. They ought not, I think, to be taken as meaning that the costs of fares of relatives and others visiting an injured person are necessarily to be allowed in assessing the damages to which that person is entitled. Sometimes they may be, especially in the case of a young person injured and far from home, as Taylor J. held in Wilson v. McLeay [2] But, as I see it, whether or not a particular expenditure is a consequence not too remote of the injury is in every case a question of fact. As I understand it, what this Court did in Morgan v. Hosking [1] was to allude to some considerations proper to be borne in mind in assessing the amount that the infant plaintiff in that case should have as general damages by indicating some of the ways by which a trustee who would receive and have to administer the fund could properly do so for her benefit. That case was quite different from this. I would, therefore, assess compensation for economic loss (£6,000), future medical expenses, domestic assistance and special equipment (£11,800) a total amount of £17,800. If a higher rate of interest than five per cent per annum be assumed for the purposes of the calculations, this sum would be less. But it has been the common practice of Australian courts to adopt five per cent as the rate of interest when the present value of future receipts and outgoings has to be computed in assessing damages for personal injuries. I see no reason for departing from that in this case.

1. (1960) 104 C.L.R. 667 (note). 2. (1961) 106 C.L.R. 523. 3. (1960) 104 C.L.R. 667 (note).

To this amount of £17,800 there should be added a substantial sum for pain and suffering and loss of so much of the enjoyment and opportunities of life. In strict logic this sum should depend only on an estimate of what the plaintiff has suffered and lost. Yet courts do, inevitably and properly I think, take into consideration how far and for how long money can be used by or for the patient to alleviate suffering and provide comfort and enjoyment. It is the circumstances of this plaintiff that must be considered. And, as I have said, general damages must in the end be regarded as one sum to compensate for her losses which ultimately are to be assessed as a whole and not as a total of independent parts. In this case I would add about £3,000 for the incalculable elements of pain and suffering and deprivations caused by the accident. This would result in an assessment of general damages at £20,800. The other members of the Court think £20,000 is the proper sum. The difference is not great. Precision is impossible and it is desirable that large sums of general damages be assessed roundly. I am content therefore to concur in the conclusion of the other members of the Court. This is a very big departure from the assessment made by the learned trial judge. He said that he had considered awarding more than he did; but felt restrained by what had been done in comparable cases. We, however, were not told of any cases that were really comparable with this one. Cases are not comparable in a relevant sense because physical injuries and disabilities suffered are similar. They are only comparable when injuries have similar consequences for individuals because their circumstances before and after the accident can be said to have been in relevant respects similar.

As to the husband's appeal - I agree that the amount allowed for general damages was inadequate and I concur in the assessment proposed by Owen J. Such damages ought not to be narrowly confined in a case of this kind: Toohey v. Hollier [1] . As to the allocation of specific items of special damage to husband and wife respectively, I agree that the proposed adjustment should be made.

In my opinion the appeal should be allowed. I agree in the order proposed.

The appellants, who are husband and wife, were the plaintiffs in an action brought against the respondents in which each claimed damages for personal injuries suffered in a motor car accident which occurred on 31st July 1960 when two cars collided, the respondent Chirico being the driver of the car in which the appellants were travelling as passengers and the respondent Przibilla being the driver of the other car. The male plaintiff also claimed damages for loss of consortium. At the trial liability was admitted and the only issue was one of damages. The action was heard by Mayo J. who awarded the wife a total sum of £16,576 3s. 5d., of which £4,076 3s. 5d was given for loss of earnings and out-of-pocket expenses up to the date of the trial and £12,500 represented the amount awarded for general damages. The husband was awarded £799 5s. 0d., of which £299 5s. 0d. represented his loss of wages, medical and ambulance expenses and the cost of employing a housekeeper until shortly before the date of the trial and a further £500 for loss of consortium. The appeal is brought on the ground that the amount awarded to each of the appellants for general damages was inadequate and it is convenient to deal first with the case of the wife. It appears that at the time of the accident she was forty-two years of age and a strong healthy woman. She had been employed since March 1959 as a domestic at the Adelaide Children's Hospital at a net weekly wage of about £11 10s. 0d and but for the accident would have continued in that employment. Her hours of work at the hospital were such that she was able to do all her own housework in the home which she and her husband occupied. As a result of the accident she sustained a fracture dislocation of the sixth and seventh cervical vertebrae which resulted in complete quadraplegia from the nape of her neck downwards. She was in hospital in Adelaide for about four months and was then transferred to the Paraplegic Rehabilitation Centre of the Royal Perth Hospital where she remained for about 12 months, returning to her home in Adelaide shortly before the trial. Her condition was summed up by one of the medical witnesses in apt terms when he said "Her life is little more than an existence". She can move her head and neck and her upper arms but below that she has no feeling and is completely paralysed. Her expectation of life has been shortened but the medical opinion expressed at the trial was that she might reasonably be expected to live for another twenty years. She must spend the rest of her life either in bed or in a wheelchair and cannot move without assistance, which must be available by day and night since her bladder must be relieved every two hours. She will always require the daily services of a nurse, a weekly visit by her local doctor and will have to spend regular periods in hospital for examination and possible treatment at first at three-monthly intervals but as time goes on perhaps less frequently. Daily domestic assistance in the house will always be necessary. In view of the fact that she is a heavily built woman some form of hydraulic lifting device will be necessary to enable her to be moved from her bed to the wheel-chair and back to the bed from the chair. She must live in air-conditioned surroundings because she has no normal temperature control and feels extremes of heat, to the extent of suffering from heat exhaustion. She is a courageous, intelligent woman who realizes her plight and all that it means but who is determined to make the best of such existence as is left to her. It is unnecessary to set out her condition in detail or to refer to all the disabilities and discomforts under which she must always suffer. With all respect to the learned trial judge, I think that the circumstances of her case are such that an award of £12,500 for general damages is wholly inadequate. Making the best estimate that I can, I think a reasonable amount to award under that heading would be £20,000.

The award to the husband of £500 for loss of consortium is, I think, also inadequate. He has been permanently deprived of his wife's services and must henceforth tend to her needs when he is not away from the home at work. The future cost of providing domestic assistance in the house was a factor taken into account by Mayo J. in assessing the wife's damages and, since it was not suggested by any of the parties to this appeal that this item was not properly allocated to her, I have treated it in the same way and put it aside in considering the husband's claim for loss of consortium. But this does not mean that he is not entitled to substantial compensation for the fact that his wife can no longer manage the household affairs and will never be able to give him the comfort, companionship and assistance which he would otherwise have had from her. These are matters proper to be taken into account in assessing his damages and I think that a proper amount to be awarded to him for loss of consortium is £3,000.

One other matter remains to be mentioned. Counsel for the respondent Chirico, in whose car the appellants were riding as passengers when the accident occurred, drew our attention to the fact that the liability of his client's insurer in respect of any claim made by any one passenger in the car was limited to £4,000, including costs, and he referred us to s. 104 (2) of the South Australian Motor Vehicles Act No. 53 of 1959 which was in force at the relevant time. We were told also that the liability of the other respondent's insurer in respect of the claims was unlimited. In these circumstances it is, or it may be, of importance to the respondents and their insurers that certain items of out-of-pocket expenditure incurred should be allocated by way of damages to the party who actually incurred it. An examination of the learned trial judge's reasons shows that the amount of £4,076 3s. 5d. awarded to the wife by way of special damages included an amount of £138 13s. 5d paid to the Royal Perth Hospital, an amount of £215, being the cost of an air-conditioning unit, and a further amount of £6 16s. 0d. paid to the West Croydon Private Hospital. These payments were made by or on behalf of the husband. They total £360 9s. 5d and that figure should properly be included in the amount of special damages awarded to the husband and deducted from the special damages awarded to the wife. In the result, therefore, the wife should have judgment for £23,715 14s. 0d., made up of £3,715 14s. 0d special damages and £20,000 general damages, and the husband should have judgment for £3,659 14s. 5d, consisting of £659 14s. 5d. special damages and £3,000 general damages.

The appeal should be allowed with costs and the order made by Mayo J. varied accordingly.