Damages
16 The damages included non-economic loss of $26,000 on the basis of 25 per cent of a most extreme case, past economic loss of $37,934 and future economic loss of $52,644.75.
17 The appellant submitted that 25 per cent of a most extreme case was beyond a sound exercise of the judge's essentially discretionary assessment, and that no more than 10 per cent was warranted. If that were so, the respondent would not be entitled to any non-economic loss.
18 The respondent was aged 29 at the time of her fall. She fell heavily onto her right side and hit her head. She had a laceration on the eyelid and a black eye and bruising on the left knee, all of which resolved. She fractured the neck of the radius on her right arm, and the judge found that low back pain which developed about three weeks after the fall when she returned to work was due to soft tissue injury and aggravation of disc degeneration and was caused by the fall.
19 The respondent had worked for Ronitas from about June 1999. She returned to her work after the fall, but could not continue because the work included packing and sending orders with lifting of weights up to 10 to 12 kilograms and a lot of standing. She worked reduced hours, then left her work in July 2001. From November 2001 she helped her husband in his restaurant business, being paid $50 per night, but with decreasing hours because of back soreness until she was working only two nights a week.
20 The judge found that the respondent's right arm troubled her, principally only in periods of cold weather, with intermittent throbbing pains in the elbow. She had pain in the knee in cold weather, and back pain exacerbated by walking, sitting, standing and driving.
21 The judge said -
"I accept that the plaintiff has ongoing symptoms in the low back and, to a lesser extent, in the right knee and right arm. The overall picture is one of improvement since the date of accident. There is no suggestion of any significant underlying objective cause, even in the low back. I am accordingly satisfied that there is a real prospect that her symptoms will continue to improve over time.
I accept that in the period after the accident the plaintiff had severe symptoms which restricted both her activities of daily living and work capacity. She still has symptoms severe enough to require regular medication. It is not likely that her symptoms will completely resolve in the near future.
I assess non economic loss at 25% of a most extreme case."
22 Her Honour did not elaborate on the restriction in activities of daily living. There was little evidence given. A medical report recorded that the respondent could no longer go horseriding or dancing. The respondent's husband gave evidence that she found it hard to vacuum and took breaks while vacuuming, that she found it "more difficult" to bend down to pick up the washing when hanging it out, and that she would not carry as much of the shopping in from the car. Nor did her Honour elaborate on the severity of symptoms, which was not greatly described by the respondent and was rather variably recorded in the medical reports; the judge did note that Dr Beer assessed a 10 per cent impairment of the back in January 2004.
23 Acknowledging, that the judge's assessment was essentially discretionary (Dell v Dalton (1991) 23 NSWLR 528), in my opinion severity of the respondent's non-economic loss at 25 per cent of a most extreme case was so excessive as to fall outside a sound exercise of the discretion. The respondent's condition had improved since her fall, and there was a real prospect that her symptoms would continue to improve. Without belittling her pain and suffering and the effect on her life, I do not think it could be regarded as 25 per cent of the severity of that of (say) a quadriplegic.
24 The appellant then submitted that the judge had failed to give adequate reasons for her assessment of past economic loss. Judgment was given on 17 December 2004, so the period in question was a little over 4 years from 27 August 2000.
25 The judge said -
"In 1998 the plaintiff married and left the work force for 18 months. She resumed working in June 1999.
The plaintiff claims for all of the periods off work since the date of accident. While the total claimed is $25,082, the calculation relied on by counsel for the plaintiff does not take into account the period after 31 July 2002.
I am satisfied that there are restrictions on the plaintiff's earning capacity. It would not be advisable for her to work in any job requiring heavy lifting. She will have back and knee pain if she has to stand for long periods.
However I take into account that there is no evidence of the plaintiff looking for work in the period 1 July 2001 to November 2001. In addition the plaintiff has been only working for 2 nights a week which I do not consider fully exercises her residual earning capacity.
I allow the amounts claimed to 28 February 2002 ($16,184) and $150 per week thereafter (145 weeks) ($21,750) being $37,934.00."
26 The reasons are sparse, although the parties would have understood them in the light of the submissions.
27 The respondent was asked in chief what she was earning per week after tax before the fall, and she said $454. This must have been working at Ronitas. In cross-examination she agreed that her income tax returns showed taxable income of $7,402 for the 1998-99 year, $12,375 for the 1999-2000 year and $22,173 for the 2000-2001 year, followed by the question "So in fact your taxable income has improved over that period?" to which she answered yes. The appellant later tendered the copy income tax returns, from which net wage income could be derived of $7,001.60, $10,980 and $19,141.10. The cross-examiner took pre-injury earnings no further, nor was the matter taken up in re-examination.
28 The respondent's written submissions before the judge included the calculation to which the judge referred. It was based on pre-injury net earnings of $454 per week. The appellant's written submissions referred to the figures for taxable income, asserted that the respondent had admitted that her income had increased after the accident (I think this is a misunderstanding of the question earlier set out), and said that any recovery for economic loss "should be extremely modest". We do not know what oral submissions were made, if any, in amplification; economic loss appears to have been dealt with in a perfunctory manner.
29 If the income tax returns were correct, the respondent could not have been earing $454 per week after tax before the fall. Although the conflicting positions had not been properly addressed in the evidence, the submissions required that the judge resolve the conflict. Her Honour resolved it in favour of $454, but the reasons do not recognise the conflict or explain why she found those pre-injury net earnings. This is a matter of some significance, not only for the money result but because special considerations may apply if undisclosed income is to be the basis for damages for reduction in earning capacity: see Giorginis v Kastrali (1988) 48 SASR 371 at 375-6; Trajkovski v Ken's Painting & Decorating Services Pty Ltd [2002] NSWSC 568 at [51]-[52].
30 Difficulties with the reasons go beyond the unexplained finding of $454. It is evident that the judge considered that from 28 February 2002 the respondent had a residual earning capacity of ($454-$150) $304 per week. Precision in periods and figures is illusory, but if it was thought relevant that the respondent was not looking for work in the period 1 July 2001 to November 2001, why did she recover at $454 per week until 28 February 2002 and, when the respondent's evidence was that she could only work two nights a week, on what basis did the judge find a greater residual earning capacity and arrive at the $150? This is material also to non-economic loss. If her Honour did not fully accept the respondent's evidence in this respect, what effect (if any) did that have on her assessment of 25 per cent of a most extreme case so far as founded on restriction on the respondent's work capacity?
31 At least so far as appears from the written submissions, the appellant did not provide worthwhile assistance to the judge. It was nonetheless necessary that her Honour deal with the conflict as to pre-injury net earnings notwithstanding that it had regrettably not been followed through or taken up to in re-examination, and make better known her reasoning to the past economic loss.
32 The appellant then submitted that the judge failed to give adequate reasons for her assessment of future economic loss, and had not complied with s 13 of the Civil Liability Act.
33 The judge set out s 13, and said -
"Counsel for the defendant submitted that the plaintiff should either be awarded $175.00 per week for the remainder of the plaintiff's working life or a buffer.
Counsel for the defendant submitted that I should reduce this claim on the basis that the plaintiff's pre-accident employment required her to lift weights up to 10 kg and that it is accordingly likely that the plaintiff would have incurred damage to her back as the result of her employment.
I do not understand section 13 of the Civil Liability Act 2002 to have altered the common law position. This places the onus on the defendant to establish that this would have been likely to occur in the absence of the injury which is the subject of these proceedings. I am not persuaded that there is evidence on which I could make such a finding.
Counsel for the defendant then submitted that, in the circumstances of the plaintiff's employment, she would not have worked until age 65. Again I am not persuaded that there is any evidence on which I could make such a finding.
The evidence before me establishes on the balance of probabilities that the plaintiff, but for the accident, would have continued to have been employed either by her pre-accident employer or in similar work. I do not consider that there is any evidence of a possibility that the plaintiff's disabilities might have occurred but for the injury, other than by making the usual allowance for vicissitudes.
I assess the impairment in the plaintiff's earning capacity at $150 net per week for 10 years on the 5% tables (section 14) less 15% for vicissitudes."
34 Compliance with s 13 can be seen, although not as plainly as might have been. The assumptions to which s 13(1) refers were stated in the fifth paragraph above, and the percentage to which s 13(2) refers was the 15 per cent for vicissitudes. That the respondent would have been employed until 65 or some other age was not expressly stated, but it was implicit that she would have been employed for at least the 10 years on which the damages were calculated. Implicit in employment by the pre-accident employer or in similar work was the $454 earlier mentioned, see also the use of $150 as a measure of the lost earning capacity.
35 The assessment suffered, however, from the unexplained finding of $454 underlying the $150 and uncertainty in how the judge arrived at the $150. Further, it was not explained why $150 net per week for 10 years was used. The $150 no doubt is the same measure of lost earning capacity as was used for past economic loss, but why was it used for the 10 years? It may be that the judge considered that the combination was a suitable reflection of future improvement in the respondent's symptoms and the loss which would be produced by their effect on her earning capacity, but that is not said. As well, although the appellant did not raise it with the respondent in cross-examination and appears regrettably not to have adverted to it in submissions, one of the respondent's medical reports recorded her concern that time was running out for starting a family, a decision she had delayed waiting for her back pain to get better, so time off work by reason of childbearing called for consideration.
36 Where there could not be precision and the evidence was relatively confined, the judge had to do the best she could and was entitled to make broad judgments. But the finding of $454 had to be explained, and I have reluctantly concluded that the reasons in other respects do not adequately explain the assessments of economic loss.
37 This Court is not in a position to reassess economic loss. Nor in my opinion should it substitute a percentage of a most extreme case, first because the evidence at a new trial going to economic loss would inevitably bear upon non-economic loss and there should not be assessments on different evidence, and secondly because, in the manner I have indicated, there is a question as to the judge not fully accepting the respondent's evidence in relation to ability to work only two nights a week and the effect of that on the assessment of non-economic loss. In my opinion, there must be a new trial as to damages. I would not expect past and future out of pocket expenses to be controversial, and the new trial should extend to them.