Cowra Shire Council v Trudgett

LOWER COURT District Court JURISDICTION : LOWER COURT DC 126/01 FILE NUMBER(S) : LOWER COURT O'Reilly DCJ JUDICIAL OFFICER :

1 Meagher JA : I agree with Palmer J. 2 Hodgson JA : I agree with Palmer J. 3 Palmer J : Introduction 4 This an appeal against an award of damages in favour of the respondent made by Judge O'Reilly in the District Court on 18 February 2003. 5 The respondent was injured on 7 May 2001 when the car she was driving struck a large patch of loose gravel on a curve in a road which was under repair by the appellant. The car skidded on the gravel, failed to respond to the respondent's efforts to control it, left the road, hit a tree on the driver's side, then an embankment, rolled over and eventually came to rest on the road. The respondent, who was eighteen at the time of the accident, sustained a displaced fracture to the right body of the pubis, a fracture to the right inferior pubic ramus, some disruption of the right sacroiliac joint and a fracture of the right ala of the sacrum. 6 The judge found that the appellant was liable in negligence and that the respondent had not been guilty of any contributory negligence. He entered a verdict and judgment for the respondent in a total sum of $463,303. 7 The appellant appeals on only three grounds:

• that the judge's assessment of general damage at $100,000 was excessive and that such damages should have been assessed at $70,000;

• that the judge's assessment of future economic loss of $220,775 was excessive and should be reduced by an unspecified amount;

• that the judge should have found that the respondent had been guilty of contributory negligence and should have reduced the damages accordingly. Contributory negligence 8 It is convenient to deal with the last ground of appeal first. 9 There was no dispute at the trial as to the circumstances in which the accident occurred. The respondent was driving along the road at about 8.00am. The weather was fine, she was familiar with the road and was travelling at a speed of about 80 or 90kms per hour in a 100km per hour zone. 10 The appellant was in the course of carrying out repairs to the road. Before the respondent reached the bend in the road where the accident occurred she noticed one or two small potholes which had been filled in. No signs had been erected by the appellant warning that road works were in progress, or that driving conditions were dangerous, or that speed should be reduced. It was not possible for the respondent to see the patch of gravel in the curve in the road which she was approaching until she actually reached it and it was too late to take evasive action. 11 The appellant says that the respondent was guilty of contributory negligence because, having noticed the one or two small potholes recently filled in, she should have realized that road works were in progress and she should have slowed down. 12 I am unable to accept this submission. In my view, one or two small potholes recently filled in, without any other warning sign or indication of much more extensive road work ahead, could not reasonably have indicated to a person in the respondent's position the nature and extent of the danger that lay ahead and that driving speed should be reduced accordingly. In my opinion, the judge was correct to hold that the respondent was not guilty of contributory negligence. General damages 13 It is, of course, trite to say that a trial judge's award of general, or non-economic, damages is discretionary in its nature and that an appellate court approaches a review of such an assessment in the same way as it does when asked to interfere with any discretionary judgment. In such a case, an appellate court will not act upon its own conclusions: it will interfere only where it clearly appears that the trial judge's discretion has miscarried because he or she has applied a wrong principle of law, misapprehended the facts, or made such an extreme assessment of damages as to indicate in itself that such error has occurred: see e.g. Moran v McMahon (1985) 3 NSWLR 700. 14 In the present case, the appellant does not submit that the trial judge applied a wrong principle of law. Neither is there a submission that the judge misapprehended the facts. The judge clearly did pay attention in his judgment to the injuries which the respondent had suffered, to her present condition and to the way in which her remaining disabilities and pain affected her present enjoyment of life and her future enjoyment of life. The appellant simply submits that the judge, having taken cognisance of these facts, was more generous by $30,000 than he should have been. 15 In my opinion, in the light of the appellant's own assessment of general damages at $70,000 and in view of the fact that the judge was making an award to compensate a nineteen year old person for the effect of disabilities and injuries which she would suffer for the rest of her life, an award of general damages of $100,000 is not shown to be so manifestly excessive as to demonstrate that the judge's discretion has miscarried. In my opinion, this ground of appeal fails. Future economic loss 16 The trial judge calculated the respondent's future economic loss resulting from her continuing pain and discomfort on the basis of a loss of $200 net per week. The respondent was already earning $250 net per week for three days' work at a bottle shop. The judge was therefore estimating that, but for the respondent's continuing disabilities which prevented her from working full time, she would have earned $450 net per week until aged sixty-five. After allowing 15% for vicissitudes of life, his Honour arrived at a figure of $220,745. 17 The appellant submits, correctly, that there was no evidence adduced by the respondent that she would have earned $450 per week net but for her disabilities. She adduced no evidence as to what she might have earned if she had been able to obtain employment full time using her clerical training and her experience with horses, as she hoped to do. She adduced no evidence as to what is an average net weekly wage for a person of her general abilities. She did not even adduce evidence of what she would have been able to earn had she been able to work full time in the bottle shop rather than three days a week. 18 In the absence of such evidence, the appellant submits, the judge could not justifiably have arrived at an estimate of $450 net per week as the respondent's likely future income. The appellant does not submit that the respondent will suffer no future economic loss or that such loss would be insubstantial. Indeed, the respondent says that an award of between $80,000 and $100,000 should be made as a "cushion" against further economic loss. What reasoning process, if any, produces the appellant's suggested appropriate award has not been explained. 19 The respondent concedes that there is no evidence which would permit the court to assess with any pretence of precision what the respondent's likely loss of future earnings might be. Mr Black, who appears with Mr D. Toomey, for the respondent, says that this is entirely understandable when it is recalled that the respondent had never actually engaged in full time employment before the accident. She had just left school and was in the course of a traineeship. She never had the opportunity to show her potential as a full time employee in any particular sphere of activity. Her employment since the accident on a part-time basis in hotels and in the bottle shop has been necessitated by her inability to endure longer periods of employment without pain and discomfort, and it is no indication of what she might have been able to achieve. 20 In those circumstances, says Mr Black, his Honour frankly and sensibly regarded estimation of the difference between what the respondent is now able to earn and what she could have earned but for the accident as speculation. Indeed, his Honour said as much at page 11 of the judgment: … she did not have a chance to demonstrate what her potential would be. I have got to do my best to almost guess what I think. I think that $200 a week to age sixty-five is a pretty fair estimate. 21 As observed by Moffitt P in J.K. Kealley v Jones [1979] 1 NSWLR 723, at 734-735, there are cases in which evidence of prospective earnings which, it is claimed, would have been achieved but for the injury, may actually distract from, rather than aid in, the quantification of loss. This is especially so where the plaintiff is a young person who has a number of possible careers open at the time of the accident. Evidence of what other people in those careers are capable of earning creates not only a false but a complex and confusing picture when, in essence, "the task of assessing damages in personal injury cases should be kept as simple as possible" : per Anderson J in Jongen v CSR Ltd (1992) Aust Torts Reports 61,706 at 61,713. 22 In such cases, the assessment of future economic loss is necessarily far more in the nature of pure guesswork or speculation than estimation in any real sense of the word, as many judges have observed: see e.g. Jones v Schiffmann (1971) 124 CLR 303, at 308 per Menzies J; Paul v Rendell (1981) 55 ALJR 371, at 376 (P.C.); Linsell v Robson [1976] 1 NSWLR 249, at 259 per Mahoney JA; Foster v Tyne and Wear County Council [1986] 1 All ER 567, at 570 per Lloyd LJ; and see the discussion of the authorities in State of New South Wales v Moss (2000) 54 NSWLR 536, at 551-559 per Heydon JA. 23 In the present case, the respondent had completed her education and had received some career training. She had achieved considerable success in endurance horse riding competition and had demonstrated thereby strength of character, perseverance and ambition. As the judge accepted without reservation, she intended to seek full time employment as soon as she was fully trained. Naturally enough at her age, however, she had not yet made any definite career choice although she expressed a preference for using her clerical skills in conjunction with her horse riding skills, perhaps working in a horse stud. In those circumstances the judge was right, in my view, to approach the assessment of damages for future economic loss as, essentially, a matter of speculation. 24 The judge was not, however, without any means of guidance. He had the respondent's evidence that she was earning $250 net per week from three days casual work in a bottle shop. In this Court, counsel for the parties have agreed that, as at the date of the trial, had the respondent been able to work full time in the bottle shop at the same hourly rate of pay, she would have received an additional $196.27 net per week. It can hardly be said, therefore, that the judge was extravagant in estimating that, had the respondent not suffered the accident, she would have been able to earn $200 net more per week from full time employment. However, in my opinion, it is not unrealistic to assume that the respondent's clerical skills and her other talents, coupled with her demonstrated strength of character and ambition, would have enabled her in due course to find more remunerative employment than work in a bottle shop, so that the judge's estimate was, if anything, conservative. 25 In the result, I cannot conclude that the judge's assessment of future economic loss, legitimately speculative as it was, resulted in an amount which was so excessive that the court is justified in interfering. This ground of appeal also fails. Orders 26 I would propose that the appeal be dismissed with costs.

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