Crump v Sharah

Supreme Court of NSW|1999-06-29|Before: Davies AJ, Mr P, Mr J

New South Wales Supreme Court CITATION : Crump v Sharah [1999] NSWSC 884 CURRENT JURISDICTION : Common Law Division FILE NUMBER(S) : 19516/93 HEARING DATE(S) : 28-29 June 1999, 1 July 1999 JUDGMENT DATE : 2 September 1999

Vanessa Anne Crump (Plaintiff) v PARTIES : Gregory Joseph Sharah t/as Sharah Henville & Co (First Defendant) Garry Francis Henville t/as Sharah Henville & Co (Second Defendant) JUDGMENT OF : Davies AJ

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

19516/93 - CRUMP v SHARAH t/as G J SHARAH, HENVILLE & CO & ANOR

1 HIS HONOUR: In these proceedings, the plaintiff seeks damages from the defendants, who are partners in a firm of solicitors, G J Sharah, Henville & Co. The issues arise from the circumstance that the defendants allowed a personal injury claim, which the plaintiff had against a Mr Mark Miller, to become statute barred. In these proceedings, in which Mr P W Neil SC, with him Mr J Clyne, appeared for the plaintiff and Mrs L McCallum appeared for the defendants, the issue which has been debated is the quantum of the damages to which the plaintiff is entitled, the principal element of which is the value of her lost claim against Mr Miller. 2 The plaintiff was born on 20 August 1948. When she was fourteen she left school after gaining her intermediate certificate. She then studied at a secretarial college for twelve months to become a shorthand typist. She first worked for the Pearl Assurance Company and, in 1966, she obtained employment with the firm of solicitors which was then known as G J Sharah & Co, which later became G J Sharah, Henville & Co. Her progress in the firm was rapid. From 1969, the plaintiff worked for the partners until she left the firm in 1976. 3 The plaintiff had married Bernard Crump in June 1974 and, in 1976, she moved with her husband to live on a six acre property in Millers Road, Cattai. She was employed for six hours a day, four days a week with Grech & Bannerman, solicitors of Blacktown, until her first son, Nathan, was born in 1978. 4 While working for each firm of solicitors, the plaintiff's typing was extremely fast. She also did a good deal of conveyancing work and would see clients, attend to the execution of documents and organise settlements. At G J Sharah, Henville & Co, she handled much of the conveyancing work of the firm. 5 The plaintiff gave birth to another son on 1 October 1980 and ultimately planned to return to work shortly after that child went to school in early 1986. 6 Throughout this period, the plaintiff had a great interest in horses. She learnt to ride in about 1960 or 1961 and, from about the middle of 1964, she went to Warriewood each weekend to learn show riding. In August 1970, the plaintiff leased a thoroughbred horse and entered the 1971 Royal Easter Show. She entered the hacking contest and won third prize. Thereafter, she exhibited horses at a number of local and interstate shows and won prizes in hacking and riding, including a prize in 1982 when her horse won the championship hack at the Canberra Royal Show. In 1984, she won the riding class at the Sydney Show. The plaintiff kept four horses on the property at Cattai during 1985. Early in the year she had purchased a thoroughbred horse named "Marty". Marty was a quiet, well behaved horse. 7 The subject accident occurred on 20 June 1985 when the plaintiff was riding Marty along Millers Road. The horse was disturbed by Mr Miller's two dogs, Sam and Bess, which came out of Mr Miller's property and disturbed the horse. The horse bucked. The plaintiff was thrown off and fell to the ground, hitting her head and breaking her left collar-bone. 8 The plaintiff knew that the dogs belonged to Mr Miller. She said there had been previous occasions when they had barked at the horse but they had not previously attacked her. The plaintiff denied that any incident such as was described in Mr Miller's evidence occurred. 9 Mr Miller gave evidence that, on an earlier occasion, he had seen the two dogs barking at the plaintiff's horse whilst she was riding it. He said that, on that occasion, the plaintiff said to him, "The horse won't buck, the dogs will get their heads kicked in". Mr Miller said that, on that occasion, the pup, Sam, was about three or four feet away from the horse and both dogs were barking quite loudly. 10 Another witness, Jeffrey Tarrant, said that about a week before the accident he had been at Mr Miller's home. He had heard barking and had gone out to see what was the problem. He said that he had seen Bess barking at the horse. He said that he saw the plaintiff pull back on the reins of the horse, backing the horse up on the dog. He said that he did not know whether the plaintiff was trying to make the horse kick the dog. She was telling the dog to go away, to leave her alone. Mr Tarrant said that he did not say anything to the plaintiff. He gave evidence that he was not an experienced horse rider and that he was not able to say whether the plaintiff was intentionally backing the horse or simply trying to keep the horse under control. 11 As the plaintiff cannot remember any incident other than that dogs had previously come out from the property and barked at her horse, I think it is improbable that the plaintiff took any action by way of backing her horse onto the dogs. If she said anything to Mr Miller about the likelihood of the horse kicking the dogs, I am sure she did that as a warning for their safety, not as a threat. I am satisfied that, before the accident, nothing had occurred which had caused the plaintiff to be worried. 12 However, it is beyond doubt that the dogs had become a nuisance to passers-by and that Mr Miller was aware of this. Bess was a half-breed Alsatian and Sam, a pup of nine months, was three-quarters Alsatian. About two weeks before the accident, Mr Miller had had a visit from an officer of the local Council and had been told to register the dogs and to keep them secured. He had promised the Council officer that he would keep the dogs secured. This meant keeping them on a chain, for there was no front fence to Mr Miller's property. 13 Mr Miller said, in his evidence, that the pup Sam had become a nuisance and that he was looking for a means of disposing of her to a proper home. He said that, on the day of the accident, Sam had been chained up for twenty hours. As Sam needed a run he let Sam off the chain with the result that both dogs went out the front. 14 The plaintiff said that she was riding her horse along the road on the side opposite Mr Miller's home when the two dogs came out barking. They started to nip the hocks of the horse Marty. She said that Marty veered across the road and then the horse bucked and she was thrown off. I accept that evidence. 15 Mr Miller gave the evidence that he went outside when he heard the dogs barking. He said that the barking was constant. He said that Bess was near his property but Sam was near the horse. He said he called the dogs back and that Sam started to come back but then turned around again and was "going for the rear of the horse" when the horse bucked and the plaintiff was thrown off. 16 A few days later, Mr Miller called at the plaintiff's home, apologised to the plaintiff and expressed a hope that she was feeling better. In the course of conversation, he informed the plaintiff that an officer of the Council had earlier been to his house and had instructed him to have the dogs tied up because there had been a complaint about them. 17 In another conversation, Mr Miller said that he could not make any offer of compensation. However, Mr Miller at some stage received a sum of $10,000 as a result of an industrial accident. On Mr Miller's evidence, he instructed his solicitors to offer $10,000 to the plaintiff. In August 1987, the solicitors offered the sum of $4,000 inclusive of costs in settlement of the plaintiff's claim. This offer was refused. Apparently, the plaintiff's solicitors put a counter offer of $40,000 which was rejected. 18 The principles to be applied in this case were laid down in Johnson v Perez (1988) 166 CLR 351 and Nikolaou v Papasavas, Phillips & Co (1989) 166 CLR 394. In those cases, it was held that, where a plaintiff loses the benefit of an action by reason of the negligence of a solicitor, the damages recoverable from the solicitor are, in general, to be assessed by reference to the amount appropriately awarded when the action would ordinarily have been determined but for the solicitor's negligence and not the prevailing award at the time when the claim against the solicitor is determined. In Johnson v Perez, Wilson, Toohey and Gaudron JJ said at 366-7: " The first component in that assessment [of damages] is the amount of damages likely to have been awarded by the court before whom the action against the employer (as in this case) would have come. That loss crystallises when the action is dismissed for want of prosecution and is then capable of assessment. "

Their Honours indicated, however, that evidence of facts after the date of the hypothetical trial may be relevant. Their Honours said, inter alia, at 368-9: " Again, the fact that the respondent's damages are to be assessed as at the time each action was dismissed for want of prosecution does not mean that evidence is excluded of events occurring since the dismissal. Such evidence may be relevant in a number of ways. In the first place, it may assist the court in placing itself in the position of the trial judge at the notional trial when a judgment was to be made of the likely losses that would be suffered by the respondent in the future and for which the employer was to be held responsible. As Latham CJ pointed out in Willis v The Commonwealth (1946) 73 CLR 105 at 109: '... where actual facts are known, speculation as to the probability of those facts occurring is surely an unnecessary second-best. Damages are awarded for injury actually suffered and for prospective injury. Prospective injury can only be estimated with more or less probability. But where the extent and character of what would at one time be described as prospective injury depends upon the happening or non-happening of a particular event and that event has in fact happened, it is unnecessary to speculate as to whether or not this event might happen and, if so, when. In such a case prospective damage (or diminution of damage) has become actual.' Secondly, in a case where witnesses have died or there is a paucity of evidence (perhaps because of the negligence of the solicitor) touching the condition of a plaintiff at the time of a notional trial, the evidence relating to subsequent events (including, for example, later medical reports on a plaintiff) may assist a court in piecing together the case that could, but for the negligence of the solicitor, have been made out in the trial of the earlier action: see Tutunkoff v Thiele . In each of these two respects, the evidence is received for the purpose of assessing the damages that the plaintiff was likely to have been awarded had the action gone to trial ."

Dawson J expressed a similar view at 392 where his Honour said: " The one qualification which I would make relates to situations where a loss could have been established as a probable consequence of the injuries received at the time the actions were dismissed. It is appropriate to take such a consequence into account in assessing the value of the lost chance and, for that purpose, there can be no objection to looking at actual events up to the time of the trial of the actions against the solicitors as an aid in making that assessment. That would involve no departure from the principle that the assessment is to be made upon the basis of the loss provable at the time when the actions against the employers were dismissed; it would merely give preference to actuality over conjecture in establishing the precise extent of the loss. " 19 Another element of damages which Wilson, Toohey and Gaudron JJ indicated could be sought was damages where the plaintiff had suffered injuries which had been aggravated by delays in the prosecution of the claim. Their Honours said at 369: "... evidence of subsequent events may be tendered ... in the prosecution of a claim of aggravation of injury or other loss directly attributable to the negligence of the solicitor ."

Brennan J, dissenting on the principal issue, expressed a like view at 373. Such a claim is not made in the present case except to the extent that a claim is made for the shock and distress which the plaintiff suffered when informed that her action had become statute barred. 20 The general basis upon which the value of the lost cause of action is to be valued was stated in Johnson v Perez by Brennan J in a passage which was later cited with approval by Mason P, with whom Meagher JA and Dunford AJA agreed, in Phillips v Bisley (unreported, Court of Appeal, 18 March 1997). At 372, Brennan J said: "The value of the lost cause of action is not what a speculator would be prepared to offer the plaintiff as the price of an assignment of the cause of action. The plaintiff's loss being whatever monetary compensation he would have received at the time he would have received it but for his solicitor's negligence, the court must find whether or not he has lost something of value. If he would have failed in the original action, he has lost nothing; if he would have succeeded, he has lost what he would have received at the time he would have received it; if the action would have been compromised, he has lost what he would have been paid in settlement at the time when he would have been paid. Or, if it is doubtful whether or not he would have succeeded in the action and it is not probable that the action would have been compromised, the court assessing the damages must determine as best it can on the balance of probabilities whether the plaintiff would have succeeded (and, if so, to what extent) or failed. In making that determination, the court may need to estimate the extent to which a successful plaintiff's damages would have been reduced because of contributory negligence." 21 Counsel for the plaintiff alleged that, but for the fact that the claim became statute barred, Mr Miller would have been liable both under the Common Law principles of negligence and under s 20 of the Dog Act 1966. In my opinion, liability for negligence was clear. The dogs, and particularly the pup Sam, were a nuisance and troublesome to passers-by. Mr Miller was well aware of the problem for he had promised the Council officer that, to avoid it, he would keep the dogs secured. He was aware that the dogs had troubled the plaintiff's horse by barking. Accordingly, he knew of the problem. It was reasonably foreseeable to him that, unless he kept the dogs secured, they could cause a horse to behave in such a way as to dislodge the rider. The common response of both humans and animals to Alsatians and like dogs which approach and bark at them is sufficient to found this conclusion. It matters not that the event may have been considered unlikely, if the possibility of injury was reasonably foreseeable: see Wyong Shire Council v Shirt (1980) 146 CLR 40. I would not discount this element of the case because of a chance that negligence may not have been established. It seems to me to be a very clear case. Nor would I discount the claim because of the submission made by Mrs McCallum that the plaintiff ought to have walked and not ridden when passing Mr Miller's home. I agree with the view expressed by Clarke JA, with whom Handley JA agreed, in Zappia v Allsop (unreported, Court of Appeal, 17 March 1994) that a member of the public should not be found to be guilty of contributory negligence simply by using a public road although knowing that a particular dog had a propensity to rush out at passers-by. As Clarke JA pointed out, the plaintiff in that case, like the plaintiff in the present case, had every right to use the road as the plaintiff was doing. I should also mention that this submission was not stated as a particular of negligence nor put to the plaintiff in cross-examination. 22 However, the plaintiff was not wearing a helmet. In my opinion, contributory negligence must be taken into account, as the helmet would have tended to lessen the blow which the plaintiff's head received and therefore would have tended to lessen the head complaints from which she later suffered. Counsel for the plaintiff submitted that I should not make that finding without medical evidence relating to the effectiveness of head protection to the precise head injury from which the plaintiff suffered. However, by 1985, the effectiveness of head protection to lessen the likelihood of head injury to motor cycle riders, bicycle riders and horse riders was well known. I think there was sufficient evidence called in the present case without requiring further explicit evidence on this point. In his report, which was provided to the defendants, Mr J M F Grant stated that it was highly probable that the degree of injury that the plaintiff had suffered to the middle ear would have been very significantly reduced, had she been wearing a riding helmet. Dr J Scoppa, who reported to the plaintiff's solicitors, observed that he was unaware of any studies that had reported the effect of wearing a helmet on the probability of developing inner ear and/or middle ear trauma and that, in the absence of objective studies, Mr Grant's statement was pure conjecture. I am disposed to accept Mr Grant's view on this point, a view which was within the area of his medical expertise. As the plaintiff's head complaints were only a minor part of her overall complaints and as they had played little, if any, part in her economic loss, I shall not make a specific allowance in respect of contributory negligence but will take this matter into account when assessing general damages. 23 Section 20 of the Dog Act provides: (1) Subject to subsection (2), the owner of a dog shall be liable in damages in respect of: (a) bodily injury to a person caused by the dog wounding that person; and (b) damage to the clothing of a person caused by the dog, in the course of attacking that person.

Contributory negligence may be taken as a defence under this ground of liability as it may in an action for negligence. 24 Notwithstanding that the words "wounding" and "attacking" could be read as requiring a wound directly inflicted by a dog, the section has been given a wide meaning so as to include injury suffered by a person as a result of an act of aggression by the dog. Injuries resulting from pure accidents are not comprehended by the section. I accept the view stated by Sheller JA in Eadie v Groombridge 16 MVR 263 at 265 that "'attacking' is an act of hostility or aggression". In that case, Meagher JA, with whom Handley JA agreed, found that a dog had attacked the plaintiff who was riding a motor cycle at the time when the dog "came at" him from the footpath, ran parallel with the motor cycle for some short distance and then turned into the motor cycle, colliding with it. The dog was a German Shepherd. 25 The same approach was taken in Zappia v Allsop where Kirby P, Clarke and Handley JJA held that an attack had occurred in the circumstance that a dog charged at a person riding his bicycle growling and barking at him. In that case, it was held by Clarke and Handley JJA, Kirby P dissenting, that the injuries suffered by the cyclist, when ultimately the dog crashed into the rear wheel of the bicycle causing the cyclist to be thrown to the ground and knocked unconscious, were a wounding, although the cyclist and the dog had not come into contact. 26 In the present case, I see no relevant distinction between the riding of a horse and the riding of a motor cycle or bicycle. There may be a distinction of fact in that, in Eadie v Groombridge and in Zappia v Allsop, each dog came into contact with the cycle. However, in my opinion, an actual contact is not necessary to establish an attack. It is sufficient that the two dogs, Bess and Sam, particularly Sam, joined in barking at the horse and that Sam at least had nipped at its hocks. The plaintiff was thrown off when the dog, who had been called back by Mr Miller and had commenced to return, changed its mind and went again for the horse's rear legs. 27 In my opinion, these facts establish liability under the Dog Act. However, as Zappia v Allsop was not decided until after the date upon which the hypothetical trial of the plaintiff's claim against Mr Miller would have been heard, I would allow a 15 per cent reduction in the value of the claim for possible uncertainty in respect of the law at that time. 28 I have before me an expert opinion by Mr John Coombs QC who has expressed the view that relevant time cases, arising out of attacks by dogs, were almost always commenced in the District Court which, when the action should have been commenced, had a jurisdictional limit of $100,000. This was increased to $250,000 on 1 July 1993. Where a defendant consented, the matter could be heard in the District Court with unlimited jurisdiction and, if the jurisdictional limit was a problem, the plaintiff could apply to a Master of the Supreme Court for the transfer of the proceedings to that Court. I think that I should proceed on the assumption that the plaintiff's claim would have proceeded in such a manner that the jurisdictional limit did not apply. 29 I would not discount the value of the plaintiff's claim because of the possibility of settlement. One reason is that the plaintiff's claim against Mr Miller was a strong one and was not one in respect of which it would be proper to take into account the value of settlement prospects rather than the value of the claim itself. The second is that it is highly unlikely that Mr Miller would have been prepared to settle the claim at any figure which the plaintiff would have accepted. Mr Miller had no assets other than his home. I cannot see him agreeing to a compromise which would have involved a loss of that home. 30 I turn now to the question of damages. 31 Counsel are agreed that the notional trial date to be adopted for the purposes of assessment is 1 July 1993. 32 Before the accident, the plaintiff had not been in employment. However, she did cleaning work for a friend and was paid $30 a week for this and also received $50 a week for giving riding lessons to two children. She was intending to return to work in about April or May 1986. Before the accident, the plaintiff had good health and led an active life. She often rode and undertook the physical work of looking after her horses and their stables as well as attending to her housework. 33 In the accident, the plaintiff suffered a fracture of the distal tip of the left clavicle. This was treated first with a collar and cuff and then with a sling. Originally the fracture was treated conservatively although there was depression and separation of the fragments of the outer end of the clavicle. There was an obvious deformity at the outer end of the clavicle. A photograph shows a disturbing looking bump on top of the shoulder. An operation was carried out on 15 October 1985 in which tension band wiring was applied. At a subsequent operation in April 1986, the pins and wires were removed. At the time, her operating surgeon, Dr P Segelov, thought that the plaintiff would be happy with the result but that she would be left with some residual disability amounting to some 10 per cent loss of function in the shoulder. 34 The plaintiff had fallen on her left side and, in addition to hitting her shoulder, she hit her head, with the result that she suffered some difficulty with hearing, some loss of balance, ringing or tinnitus in the left ear and headaches. She had dizzy spells from time to time and, at least for a while, a blurring of her vision. 35 On 2 July 1985, the plaintiff saw Dr Mackay who found that her left ear was full of debris which he removed. He found that the eardrum was injected and there appeared to be fluid behind the drum. He considered that the plaintiff's hearing was satisfactory to whispered voice tests. After two weeks, the eardrum was practically normal and the giddiness had settled down but the plaintiff still complained that she felt that her hearing was affected. An appointment was made for a hearing test in a month's time but the plaintiff did not keep this appointment. 36 The plaintiff also had extensive bruising down the left side of her body, particularly in the hip area. She had many aches and pains in the early days. 37 In addition, the plaintiff suffered a mood change for some time, becoming very irritable with her husband and children. The plaintiff became nervous with horses. She sold her horse Marty and, when she did commence riding again, she often rode in the paddocks which she and her husband owned. Although she rode at shows, she did not achieve her earlier success. 38 I have already set out dicta from the reasons in Johnson v Perez of Wilson, Toohey and Gaudron JJ at 368-9 and of Dawson J at 392, that, for the purpose of establishing the probable consequences of injuries received and known at the time of the hypothetical trial, it is permissible to look at actual events up to the time of the trial of the action against the solicitor. Such an approach gives preference to actuality over conjecture: see per Dawson J at 392. Counsel for the defendant, Mrs McCallum, submitted that Dawson J expounded the view that the principle that the law prefers facts to conjecture has no application where the exercise is the valuation of a lost opportunity. However, that is not the point which Dawson J made, which is that the actual facts as they have turned out may be taken into account in assessing the value of the lost chance. 39 This discussion leads to the point that the medical reports which had been received by the solicitors prior to the proceedings becoming statute barred were reports dated 1989 or prior thereto. These reports were generally favourable in their prognosis. However, the relevant date of the assessment was not 1989 but 1 July 1993. The plaintiff's current solicitors obtained other medical reports, during and after 1994, and these showed a different picture. 40 In my opinion, by July 1993, which was eight years after the accident, a trial judge would have regarded the plaintiff's injuries as having stabilised. The judge would not, at that stage, have considered that there was any real prospect of significant improvement after the conclusion of the proceedings. By July 1993, the plaintiff was satisfied that she could not work again as a legal secretary. She in fact took employment with the Commonwealth Rehabilitation Service as an administrative officer in August 1993. She has remained in that employment which, while it involves light typing work, does not involve the heavy speed typing that previously the plaintiff was required to do when working as a legal secretary. I am satisfied that employment of the nature which she undertook in August 1993 would have been regarded by the trial judge as employment of the type which she was fit to undertake. 41 The plaintiff had a great deal of pain after the accident in June 1985 for she had bruising down her left side, she had broken her left clavicle and her head had hit the ground. The plaintiff recovered gradually and received a good deal of assistance from her husband, who fortunately was available in the afternoons to help with the housework and with looking after the horses. Her mother and her sister also assisted. It is clear that, in addition to her physical injuries, the plaintiff was shocked by her accident. The shock was probably enhanced by the unpleasant looking bump which she had on her shoulder after the operation and by the fact that the break did not heal. The plaintiff lost a good deal of confidence both in her riding and in the use of her left shoulder and arm. She tended thereafter to protect her arm. 42 Some of the more recent reports have discussed whether the plaintiff may have an anxiety state with phobic elements. I think that no such claim would have been made in proceedings heard on 1 July 1993. However, the report of Dr E J Alam given on 15 December 1994 also reported, "Marked nervous shock, characterised by irritability, apprehension, particularly about riding and driving". Dr Alam said that, "Without concerted psychological therapy, she would be unfit for her former riding teaching activities". I am satisfied that this element of the plaintiff's condition was well established by 1 July 1993. The irritability had been particularly noticeable in the twelve months or so after the accident when she felt upset and depressed. Her sex life suffered, particularly in the first two years due to the pain in the shoulder and her depression. Dr Alam also reported that the plaintiff's left shoulder ached, particularly in winter time when it was cold, that the scar was tender to touch, that she had had to obtain a water bed so that she could sleep on the left side and that, having done so, she was no longer woken up with soreness and aching as had been the case in the first few years. These are matters to be taken into account. 43 The plaintiff was left with a lengthy scar on the top of her shoulder as a result of the operation. It was a prominent disfigurement which was tender to the touch. Even in 1989, the plaintiff complained of tenderness under the scar tissue. She was unable to lift heavy weights and did not again carry buckets of water or the like with her left arm. The plaintiff continued to find her left shoulder painful. It was thought by Dr J B Lawson in 1989 that the intermittent pain in her left shoulder which she described came from the acromio-clavicular joint. Dr Lawson then reported that the plaintiff had regained a full pain free range of movement in the left shoulder joint but it was the pain in the left acromio-clavicular joint which continued to give problems. The plaintiff found it painful if she attempted to use a vacuum cleaner. She gave up driving except in a car with automatic gears. She found typing painful although she could cope with a light load. Although she enjoyed swimming, the plaintiff found it painful to engage in this activity and that she could do only limited freestyle. 44 The plaintiff also found that her neck muscles tended to ache, particularly in cold weather. Dr Alam noted spasm in the musculature over both sides of the neck and concluded that she had a neck disturbance with loss of function. 45 I have already mentioned that the plaintiff saw Dr Mackay shortly after the accident and he found that there was debris in the eardrum, that the eardrum was injected and that there was fluid behind the drum. The plaintiff suffered for some time with loss of hearing, loss of balance, ringing in the ear, headaches, dizziness and blurring of vision. These complaints gradually subsided and, in 1989, Dr Lawson reported that, while the plaintiff had occasional feelings of slight dizziness in the mornings, her earlier feeling of persistent dizziness and impaired hearing had resolved. Notwithstanding the last comment, the plaintiff did in fact continue to suffer some problem with her hearing. Thus, in 1998, Dr G Coffey reported that, in recent years, the plaintiff's giddy episodes still occurred to a minor degree and that, if she became overtired, she at times experienced a brief dizzy feeling. Dr Coffey reported that the giddiness was likely to be due to the effects of age related degenerative changes on the plaintiff's damaged inner ear. 46 Dr J Scoppa examined the plaintiff in 1998 and gave her hearing tests. He reported that the plaintiff had a percentage loss of hearing calculated at 19.7 per cent for the left ear and 3.4 per cent for the right ear. Her binaural hearing loss was calculated to be 6.7 per cent. Dr Scoppa reported that the tinnitus which had been earlier experienced was unlikely to recur, that her hearing loss was permanent and that a hearing aid in the left ear may be of benefit. He reported that the vertigo which was still present from time to time may be related to effects of permanent trauma to the organ of balance in the inner ear and that this may have resulted from the accident in 1985. A subsequent test showed that the plaintiff suffered from a directional preponderance of 19 per cent to the left which was consistent with a left peripheral vestibular lesion. Dr Scoppa concluded that it was probable that the injuries which the plaintiff sustained when she fell off her horse had resulted in damage to the organ of balance in the left inner ear. Dr Scoppa considered that this damage would be permanent and that the plaintiff would continue to suffer loss of balance and dizziness when she was overtired. 47 Although Dr Scoppa's investigations and reports were made in 1998, I am satisfied that investigations of a like matter would have been undertaken in a trial which came on for hearing on 1 July 1993. That is because the plaintiff's complaints of tinnitus, dizziness and hearing loss had been made plain to her solicitor. In a Statement of Claim which was filed by the defendants on 13 October 1992, after the claim had become statute barred, the particulars of injuries included "Head injury", "Reduction in hearing" and "Giddiness and dizziness". 48 The plaintiff worked in her husband's office at the Flemington Meat Markets for twelve months or so during 1987 and 1988. Thereafter, she did occasional jobs for which she was remunerated. In about 1991, the plaintiff put her name down with an employment agency. Her earnings from the work she obtained during these years was low. The plaintiff found typing work to be difficult and, in one job in which she was involved with data processing, she found the work to be painful. In August 1993, the plaintiff obtained full-time work with the Commonwealth Rehabilitation Service. She has had no problem coping with this work as the typing level is low. 49 Counsel for the defendants has relied upon answers which the plaintiff gave to a questionnaire required by the employing department, Human Services and Health. In her responses, she replied "No" to every question about an illness or disability, other than that she answered "Yes" to the need for glasses. In my opinion, the answers given are of no significance. The plaintiff took whatever steps she could to obtain employment. 50 Relying upon the medical reports of Dr J B Lawson and Dr D G Seaton, written in 1989, Mrs McCallum submitted that the plaintiff was fit for work from twelve months after the accident. However, I proceed upon the principles enunciated by Dixon CJ, Kitto and Taylor JJ in Graham v Baker (1961) 106 CLR 340 at 346-7. The issue is not what was the percentage of physical incapacity which resulted from the accident but, in respect of the period of time between the accident and the date of the hypothetical trial, whether the plaintiff lost remuneration as a result of the accident and what was the amount of that loss. I am satisfied that the plaintiff's recovery was slow and that she undertook as much remunerative work as she felt she could undertake and was able to obtain. She commenced work with her husband in 1987 but that provided little remuneration. Thereafter, for a few years, she undertook a few short jobs which brought in little remuneration. From about 1991, the plaintiff was actively seeking work. However, she was unable to find suitable full-time work until August 1993. I am satisfied that, throughout the period, the plaintiff wished to work provided she could do so. One problem was that the plaintiff had been trained as a secretary but found typing to be painful. She did some voluntary typing work for a hacking association but found that she experienced pain in her shoulder and into her neck. She found housework to be difficult and painful. It was not surprising that it took the plaintiff a long time to get back to full employment. In my opinion, the plaintiff has established that she was anxious and willing to work but she was limited in her capacity to do so. In these circumstances, the plaintiff has proved economic loss up to the date of the hypothetical trial. No matter has been put forward as a means by which the plaintiff could or should have mitigated her loss. 51 As to general damages, taking into account all the matters I have mentioned, including hearing loss and contributory negligence in relation thereto, I consider that a proper award in 1993 would have been $45,000. 52 Of this, 75 per cent should be attributed to the past. Interest will be calculated at the rate of 2 per cent on that proportion, in accordance with the principle established in M B P (SA) Pty Ltd v Gogic (1991) 171 CLR 657. The calculation is $33,750 x 2% x 8 giving the figure of $5,400. 53 I accept that, but for the accident, the plaintiff would have looked for employment as a legal secretary from about April/May 1986 and I am content to accept counsel's submission that she would have found such employment by the end of June 1986. Exhibit G sets out the net earnings of a legal secretary who worked in the Workers Compensation Law Department of an insurance office. I am satisfied to accept those figures reduced by 10 per cent to reflect lower salaries in the suburbs. I am therefore content to accept counsel's figures for the loss from mid-1986 to mid-1993 being $350 x 52 x 7, giving a total of $127,400. 54 The plaintiff gave evidence of a few jobs she had during this period and, if her evidence was accepted, she would have received a little over $9,000 for her work. Counsel for the plaintiff is content to increase this to $12,400 in case the plaintiff's memory is at fault. I think this figure should be accepted. That gives a net loss of $115,000. 55 Interest thereon would be $115,000 x 9.5% x 7, a total of $76,475. 56 For the first year after the accident, the plaintiff would have lost $80 per week from her cleaning and teaching jobs, giving a loss of about $4,000 which, with interest, would amount to $5,236. 57 By mid-1993, the legal secretary I have mentioned was earning $512 per week net of tax. Reduced by 10 per cent, the figure comes to $460 per week. At that time, the plaintiff was earning approximately $400 net of tax. The net loss per week was $60. On her evidence, the plaintiff would have worked at least until age sixty. Therefore, fifteen years are to be taken into account using the multiplier 632.3, giving a figure of $37,398. Reducing the sum by 15 per cent to discount for the ordinary vicissitudes of life, one comes to a figure of $31,788. 58 Counsel for the plaintiff submitted that, as a trial judge would not have known that the plaintiff would obtain work with the Commonwealth Rehabilitation Service, he would have been more likely to have assumed that the plaintiff had lost a percentage of her capacity to earn income, which counsel suggested would have been 40 per cent, and that the judge would have proceeded on an assumption of a loss of $200 per week net, which would have given a future economic loss of over $100,000. I consider that the judge would have thought it probable that the plaintiff could and would return to full-time employment and would receive remuneration at about the level which she actually obtained. Moreover, as the plaintiff actually did return to full employment in August 1993 and has remained in that employment since, it accords with the principles outlined in Johnson v Perez, which I have discussed above, to take account of the actual events. 59 Out-of-pocket expenses are agreed at $2,743. 60 A claim for domestic assistance is made under the principle outlined in Griffiths v Kerkemeyer (1977) 139 CLR 161. I need not discuss the voluntary assistance that has come from the plaintiff's mother, her sister and her husband. Counsel for the plaintiff claimed a sum of over $12,000. Counsel for the defendants suggested $10,000. I adopt that sum. I think that the claim in respect of the plaintiff's husband was excessive and that some of the additional work which he undertook in the domestic field was work which husbands can reasonably be expected to do without remuneration. 61 There would have been irrecoverable costs in relation to the legal proceedings. It is not in dispute that I should assess these at $5,000. 62 The summary of damages as at 1 July 1993 is as follows: General damages $45,000 Interest on past general damages $5,400 Loss of income in first year post-accident $4,000 Interest on same $1,236 Past wage loss $115,000 Interest on notional past wage loss $76,475 Future economic loss $31,788

Out-of-pocket expenses $2,743 Claim for voluntary domestic assistance $10,000 $291,642 Less allowance for irrecoverable costs $5,000 63 The total of these sums is $286,642 which seems to me to be the fair and reasonable compensation to be awarded had the plaintiff's claim been heard and determined on 1 July 1993. 64 However, there is another factor to be taken into account and that is that Mr Miller was uninsured. He gained employment in labouring jobs. He had few assets except his house and contents. No value has been put upon those contents. I assume from the photograph of the house that the furniture and fittings would have had only small value. Photographs of Mr Miller's home also show a car which I assume belongs to Mr Miller. It would not have had great value. Mr Miller subsequently obtained a sum of $10,000 by way of workers compensation for an injury to his hand. I assume that this sum would have been dissipated in legal costs had proceedings been instituted. 65 Evidence has been given by a valuer that Mr Miller's property would have been worth $205,000 in June 1995 but that prices rose in the early part of 1995. Taking account of the possibility of lower prices if the property were sold in execution, the cost of sale and transfer if the matter were handled privately and the cost of the proceedings necessary to obtain judgment estimated at $15,000, I consider that only $175,000 could have been recovered from Mr Miller. That was the value of the plaintiff's lost claim. 66 Counsel for the plaintiff has submitted that the plaintiff would have received an amount of around $190,000 by the end of 1993. This figure fails to take into account the cost of the proceedings, which would have been irrecoverable as Mr Miller had no funds to pay them. 67 Counsel also submitted that the plaintiff would have received from Mr Miller's trustee in bankruptcy or from the Court by the garnishee of his wages an average of at least $100 per week until the balance of the verdict plus interest had been satisfied. However, there is no evidence that Mr Miller had a wife or dependants to keep him in an occupation where his wages could be garnisheed. In 1992, he was a "casual permanent". At the time of this current trial, he was in permanent employment "labouring on the turf". In these circumstances, it seems to me very unlikely that any sum would have been recovered from Mr Miller's earnings. 68 Therefore, I take the value of the lost claim to be $175,000. I am content to accept the method of calculation of interest proposed by counsel for the plaintiff. Over the years 1993 to 1999, the average rate was 10.75 per cent giving an interest of $5,912.50 for each $10,000 of the notional recoverable common law verdict. On $175,000 this figure is $103,469. 69 The plaintiff seeks compensation for the distress which the plaintiff suffered when told that her claim was statute barred, distress which was enhanced by the fact that she regarded the defendants as her friends. She had worked for them for many years and she trusted and relied upon them. I shall award the sum of $5,000 in accordance with the principles enunciated in Baltic Shipping Company v Dillon (1993) 176 CLR 344. Interest thereon should be allowed at the rate of 4 per cent for 7 years: $1,400. 70 The plaintiff will have judgment for the sum of $279,869. The defendants should pay the costs of the proceedings.

Further Orders 71 I order that pursuant to the 'slip rule', paragraph 70 of this judgment be amended by deleting $279,869 and replacing it with $284,869. I order indemnity costs from 7 June 1999.

Last Modified: 09/28/1999 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

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