Damages
138 I have mentioned that Murray ADCJ assessed damages at $461,524.30. Of this sum $200,000 was for future economic loss. This amount is the subject of challenge by way of cross-appeal.
139 Ms Edson suffered a severely comminuted and displaced fracture of the right acetabulum, and an unstable and displaced pelvic ring disruption. She also had a complete tear of the lateral, co-lateral and posterior cruciate ligaments in the left knee.
140 At the time of the trial Ms Edson had pelvic pain that was secondary to degenerative changes (post traumatic osteoarthritis) in the right sacro-iliac and right hip. She had residual instability in the left knee and pain in the right shoulder, secondary to the fractured clavicle. There was a 25% chance of her requiring a total hip replacement at a later stage. She would require at least one further revision if that total hip replacement occurred. There was a 20% chance that she would need a left total knee replacement. It was likely that she would require at least one revision if that occurred.
141 The judge found that Ms Edson was fit for full-time work but would be unfit for active work involving lifting objects in excess of 10 kilos. She would also be unfit for work requiring prolonged standing or walking. These restrictions are permanent. There was some evidence of psychological and brain damage but the judge rejected this.
142 The judge's findings in regard to past economic loss are relevant to his challenged findings as to future economic loss. His Honour dealt with past economic loss as follows:
"At the time of the accident [Ms Edson] was in year 8 at high school. Following the accident she was hospitalised until 7 October 1998, and remained at home recuperating for the rest of the year. She resumed high school in 1999, but left school at the end of year 10 in the year 2000. She was a poor student, both before and after the accident. In July 2001 she gained employment … as an administration clerk/junior secretary.
In this position she was unable to work full-time, and frequently required time off work for doctors' appointments. [Her employers describe her] as a quick learner, and if inclined, had the capacity to develop her secretarial skills further. Her chances of advancement, however, were limited by her inability to work full-time.
In April 2004 [Ms Edson] moved with her family to Tweed Heads, where she hopes to study to become a beautician."
143 His Honour concluded:
"It is difficult to identify from this evidence any precise economic loss. No doubt her education was disrupted by the effects of her injury, and I believe that her future work capacity will be curtailed substantially by the development of osteoarthritis in both the hip and left knee in the future."
144 Murray ADCJ referred to a report by a forensic accountant, Mr Geoff Collins, which identified a past loss of $14,317. This loss was calculated on the assumption that Ms Edson would have been able to work full-time, but was unable to do so. For the period from 2002 to 2004 Ms Edson's actual earnings were $34,629. Mr Collins calculated that, on the basis of the relevant State award, Ms Edson would have earned $47,719. The judge considered that on these figures he should allow the sum of $8,000 as representing Ms Edson's past economic loss.
145 His Honour dealt with future economic loss as follows:
"I think [Ms Edson] will be prevented from realising her full work potential in the future. I think also that she will have periods of time out of the work force because of the need for operative treatment. I also think that [Ms Edson] will be unable to work, because of her injuries, until the age of 65. Doing the best I can I would access her future economic loss, by way of buffer only, at $200,000. The above figures are inclusive of loss of superannuation benefit."
146 This assessment takes into account the fact that Ms Edson ceased working as a secretary and took up work as a beautician. She testified that she found work as a secretary too draining. Her back and hip were too painful and she said that she could not commit herself permanently to work of this kind. She chose to become a beautician as she could then work at home when she felt up to it.
147 His Honour's award is challenged on two grounds. The first was described as follows in the RTA's written submissions:
"There is no evidentiary foundation for such a substantial amount. There was no medical evidence that osteoarthritis would curtail her career. If there is to be a surgical response to osteoarthritis, some period of recuperation is to be expected, and thus a buffer may be justified, but not such as to justify this award. The award, having regard to its quantum, appears to presume that such surgical intervention would fail. His Honour's discretion miscarried, the award being manifestly excessive, and there being no evidentiary foundation for findings supporting such a figure."
148 The trial ended in September 2004. At that time Ms Edson was nearly 20 years of age, having been born on 31 October 1984. The $200,000 awarded by the judge for future economic loss therefore represents an award for a period of some 45 years.
149 Mr Collins calculated Ms Edson's future loss of earning capacity. He commenced by taking into account the fact that she had worked as a secretary/personal assistant and he had regard to earnings in accordance with the State award (as he had done in regard to past economic loss). He then assessed Ms Edson's expected future earning capacity as a beautician by reference to the average weekly earnings for beauticians. The average weekly earnings for beauticians were substantially lower than the average weekly earnings for secretaries. On this basis he calculated the value of Ms Edson's loss of capacity as $213,088 and loss of potential superannuation contributions as $23,803, giving a total loss of $236,891.
150 There is little evidence as to whether the pain from which Ms Edson suffered would endure. Dr Harris, an orthopaedic and spine specialist, expressed the opinion on 28 August 2003 that her symptoms were unlikely to change significantly in the next 12 months. Dr Benanzio, an orthopaedic surgeon, expressed the opinion by report dated 23 October 2002 that post-traumatic degenerative changes may be expected in the right hip joint and the left knee joint. He said the prognosis "remains very guarded". There was no other evidence on this issue. In my opinion, it was open to the judge to infer that the pain from which Ms Edson suffered would endure permanently.
151 The net earnings of a secretary were about $23,000 per annum. Mr Garling submitted that if the reduction in working life was taken to be 10 years the present day value of the loss based on the wages of a secretary compared to those of a beautician would be about $57,000. If it be assumed that Ms Edson would lose a year's work by reason of her various operations, a further loss of $23,000 would have to be taken into account. That brings one to an amount of $80,000.
152 In my opinion, Mr Garling's submissions have force. In my opinion, the award made by his Honour was excessive and an appropriate award as a buffer for future economic loss would be $125,000.
153 The next aspect of the RTA's challenge to the award for future economic loss is the fact that his Honour did not reduce the buffer by any discount for vicissitudes. In my opinion, however, the very nature of a buffer takes into account vicissitudes and I do not think there is substance in the RTA's argument in this respect.