Penrith City Council v Parks

CATCHWORDS : Negligence - defective paving slab - council cut slab preparatory to repairs - created hazard of cut section tilting underfoot - tilted and pedestrian tripped - whether negligence - whether damages for non-economic loss excessive - reassessment of damages for non-economic loss - whether damages for future economic loss excessive - whether s 13 of Civil Liability Act 2002 complied with - no material error and damages not excessive. D. Burwood City Council v Byrnes [2002] NSWCA 343; Ghantous v Hawkesbury City Council (2001) 206 CLR 512; CASES CITED : Husher v Husher (1999) 197 CLR 138; MacArthur Districts Motor Cycle Sportsman Inc v Ardizzone [2004] NSWCA 145; Medlin v State Government Insurance Commission (1995) 182 CLR 1. PARTIES : Penrith City Council - Appellant May Elizabeth Parks - Respondent FILE NUMBER(S) : CA 40586/03 COUNSEL : M Joseph SC & N Chen - Appellant P Frame - Respondent SOLICITORS : Tress Cocks Maddox - Appellant Lamrocks - Respondent

LOWER COURT District Court JURISDICTION : LOWER COURT DC 136/02 (Penrith) FILE NUMBER(S) : LOWER COURT Delaney DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40586/03 DC 136/02 (Penrith)

GILES JA CRIPPS AJA McCLELLAN AJA

Monday 21 June 2004 PENRITH CITY COUNCIL v Mary Elizabeth PARKS Judgment 1 GILES JA: I have had the advantage of reading the reasons of McClellan AJA in draft. Subject to what follows concerning future economic loss, I agree with them. 2 The meaning and effect of s 13 of the Civil Liability Act 2002 is most obscure, and I add my voice to the suggestions that Parliament should reconsider its wording. It is nonetheless necessary to say something of its application in order to determine the question of future economic loss. 3 A claimant's entitlement to damages for future economic loss, in concept for loss of earning capacity (Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 4; Husher v Husher (1999) 197 CLR 138 at 143), involves a comparison between the economic benefit to the claimant from exercising earning capacity before injury and the economic benefit from exercising earning capacity after injury. I agree that s 13(1) appears to address the former. 4 I do not think there is much difference in the result between the operation of s 13(2) identified by Hodgson JA in MacArthur Districts Motor Cycle Sportsman Inc v Ardizzone [2004] NSWCA 145 and that favoured by McClellan AJA. Taking the conventional 15 per cent for contingencies, the one looks to the 15 per cent and the other looks to the balancing 85 per cent. I do not think it matters for the present case. 5 I consider that it is still open to assess damages by way of a so-called "buffer". The occasion for a buffer is when the impact of the injury upon the economic benefit from exercising earning capacity after injury is difficult to determine. There is still a comparison between the economic benefits, although the difference can not be determined otherwise than by the broad approach of a buffer. Section 13(1) can be fulfilled, and the assumptions as to exercising earning capacity before injury can be stated. Having determined damages for future economic loss by way of a buffer, because of the broad approach there is no question of percentage adjustment, and so in the application of s 13(2) the percentage adjustment is nil. 6 The trial judge's error was that he did not state that he made a nil adjustment. It is of no significance. The damages at which he arrived were well within the range available to him. 7 I agree with the orders proposed by McClellan AJA. 8 CRIPPS AJA: I have had the advantage of reading the draft reasons of Giles JA and McClellan AJA. The meaning of s 13 of the Civil Liability Act 2002 and its application to hypothetical circumstances is as Giles JA says most obscure. 9 Both Giles JA and McClellan AJA have referred to the principles upon which damages for future economic loss are measured and the decision of Hodgson JA in MacArthur Districts Motor Cycle Sportsman Inc v Ardizzone [2004] NSWCA 145. 10 I agree with Giles JA that this section does not preclude an award of damages by way of what has been referred to as a "buffer" and that in the present case it was open to the trial judge to adopt that method. If he made an error it is one of no significance for the reasons give by Giles JA. 11 Otherwise I agree with the reasons and order proposed by McClellan AJA. 12 McCLELLAN AJA: On 28 January 2002 the opponent, Mary Elizabeth Parks, tripped and fell on a concrete footpath adjacent to 50 Lakes Drive, Glenmore Park. She suffered a fracture of the little finger on her right hand and some other injuries. 13 The injuries suffered by the opponent required medical treatment including a surgical procedure. She was off work for about 14 weeks. However, she recovered and eventually returned to work. 14 Maintenance of the footpath was the responsibility of the claimant, Penrith City Council. The opponent sued the claimant in the District Court and recovered a verdict for a total of $76,530.00. An order for costs on an indemnity basis was also made in her favour. 15 The claimant applied for leave to appeal from the decision in respect of both liability and damages (see s 127 of the District Court Act 1973 NSW). The court has heard submissions in respect of both the application for leave and, upon the assumption that leave may be granted, the appeal.

Liability 16 The trial judge found that the accident occurred at a location where the claimant had previously detected a defect in the footpath, under which there was a tree root. Council workers began repair work on the footpath in September 2001 when they cut one of the slabs from which the concrete path was formed into two sections with an industrial saw. However, the repairs were not completed and the slab was left in two sections. 17 The trial judge found that by cutting the path into two sections, the claimant had created a new hazard. His Honour found that as the opponent "approached the concrete sections she did not see any defect but nevertheless tripped on a raised piece of concrete which more likely than not had come above ground level when she stepped on it" (at [3]). 18 The claimant submitted to the trial judge that it could not have anticipated that the tree root would cause the problem. However, his Honour said (at [5-6]): "The Council created a dangerous condition in the footpath by leaving two unstable pieces of concrete. I find that the sections were unstable from the time the saw cut was done and should have been obvious to the defendant. On this fact I accept Ms Legh who said that she noticed the clunking sound straight after the cut was made. The council failed to complete the repair. Instead of completing the job, they left the concrete in two sections. These were unstable when stepped on, and I find moved when the plaintiff walked on them causing a section to be raised above ground level. More likely than not the accident happened when the plaintiff tripped on the elevated section. I find that the plaintiff's front foot probably caused a panel to rise and her back foot tripped on it. This was caused entirely by the negligence of the defendant, the plaintiff having no warning of the danger. In my opinion, there should be a verdict for the plaintiff without reduction for contributory negligence. The plaintiff had no warning of the danger and could not have foreseen the condition of the path. The creation of the condition of the footpath by Council was a breach of the duty owed to the plaintiff to take reasonable care to avoid foreseeable risk of injury to pedestrians taking care for their own safety. The failure to warn of the risk or repair the footpath in a timely fashion caused the injury to the plaintiff. In coming to the conclusion the defendant breached its duty to the plaintiff, thereby causing injury, I have not overlooked the expert reports tendered by the defendant from Mr Clark. I reject any suggestion that the white paint in any way could be considered to be a warning whereby the defendant's duty had been discharged. The saw cut may have been obvious to an expert like Mr Clark whose reports on footpaths are regularly tendered before me on behalf of Councils or other road authorities. However, in my opinion it was not obvious to the ordinary user of the footpath or the plaintiff on the day she was injured. Mr Clark conceded that the slab may have moved when the plaintiff stepped on it but argued that the difference in level when this occurred would only have been slight. In my opinion this slight difference was enough to cause the plaintiff to trip and fall." 19 In support of the application for leave to appeal, the claimant submitted that his Honour had fallen into error both when framing the duty which the claimant owed to the opponent and in determining that a breach of that duty had occurred. It was submitted that more than a "slight" difference in the level of the two parts of the slab was required before it could be found that the claimant had breached its duty of care. The claimant emphasised the remarks by Handley JA in Burwood City Council v Byrnes [2002] NSWCA 343 at [26] that "a height differential is not an unexpected or unusual danger to a pedestrian in the Sydney metropolitan area who is taking reasonable care and keeping a proper lookout." The evidence in this case suggested that the differential in the height of the two parts of the slab was in the order of 20mm, a not unexpected or unusual differential. 20 The claimant accepted that it was appropriate for his Honour to find that the opponent fell by stepping on to one section of the slab which moved to leave a raised edge which caused her to trip. However, it submitted that the extent of the raised edge was modest and that a person taking reasonable care for his or her own safety would not have tripped. The claimant drew attention to the evidence that many school children had used the footpath without any reported incident. 21 The claimant emphasised the comments of the High Court in Ghantous v Hawkesbury City Council (2001) 206 CLR 512 in relation to the typical physical characteristics of footpaths when considering whether a public authority owed a duty of care and whether it had been breached. In that case, Gleeson CJ referred (at CLR 525-526) to the fact that: "… when general principles of negligence, unqualified by any rule of immunity, were applied, the courts insisted that an injured plaintiff had to show that the road or footpath was dangerous. That did not mean merely that it could possibly be an occasion of harm. The fact that there was unevenness of a kind which could result in a person stumbling or falling would not suffice ( Meggs v Liverpool Corporation [1968] 1 WLR 689; [1968] 1 All ER 1137). Not all footpaths are perfectly level. Many footpaths are unpaved. People are regularly required to walk on uneven surfaces on both public and private land." 22 Although the present case related to a defect in a footpath, the problem for the claimant was quite unlike that in Ghantous or Byrnes. In the present case, the danger was not created by the natural condition of the footpath. The trial judge found that the problem with the footpath was not identifiable by a pedestrian exercising reasonable care for his or her safety. By commencing necessary repair work and cutting the slab, the claimant had created the situation where an unsuspecting pedestrian could initiate movement of one section of the slab with the consequence that the trailing foot could catch the separated section leading the pedestrian to trip and fall. 23 In my opinion, in the circumstances found to exist by the trial judge, a finding in the present case that there was a reasonably foreseeable risk of harm to a pedestrian exercising reasonable care for her own safety, even bearing in mind the advantage of pedestrians, was clearly available (see Richmond Valley Council v Standing (2002) 127 LGERA 237). No matter of principle being raised, I would decline leave to appeal with respect to liability.

Damages 24 The applicant challenged two elements of the award of damages. The first challenge was to the award of $51,000 for non-economic loss. The second challenge was to the award of $15,000 for future economic loss. It was common ground that damages were to be assessed in accordance with the provision of the Civil Liability Act 2002 (NSW).

Non-economic loss 25 As a result of the fall, the opponent suffered a fracture to her right little finger. She also complained of pain and discomfort in the right hand, neck and back and said she had sustained some psychological reaction to the effects of the accident. 26 There was an issue at the trial as to whether some of the opponent's symptoms were due to an earlier motor vehicle accident, a fall which occurred at home in 1998 and problems in family relationships before the fall in January 2001. However, the trial judge accepted the opponent's evidence, finding that her "main medical problems after the fall was the injury to her right little finger and the emotional consequences thereof" (at [11]). 27 The applicant tendered evidence from Dr Edwards, but the trial judge did not accept it. His Honour relied instead on the evidence of the respondent's treating surgeon, Dr Preketes, and with the benefit of his own observations of the respondent, said (at [12]): "After she was injured, the plaintiff went to the Nepean hospital. X-rays were performed and the fracture detected. Because of the nature of the fracture it was necessary for the plaintiff to undergo surgery. Dr Preketes performed the operation and reviewed the plaintiff's condition for a number of months thereafter. Although the doctor said that the plaintiff had achieved a good range of movement, by February 2003 it did not appear so. I observed the finger during the trial and there appeared to be a significant disability. Dr Preketes said that she would have difficulty in performing the heavy aspects of the housework. He thought the plaintiff would be reasonably well if she maintained her physiotherapy regime. However, it is clear that she has a significant difficulty. She cannot make a fist. She has a reduced grip and cannot lift any heavy weights. The plaintiff is left hand dominant. Any task requiring two hands is now difficult for the plaintiff and she cannot use a computer effectively." 28 The trial judge said of Dr Preketes (at [13]): "The plaintiff relied on Dr Preketes who said that the plaintiff would not get full recovery of her right little finger and this might cause problems in the right hand and wrist. I accept the opinion of this treating clinician." 29 His Honour concluded (at [14]): "At the present time the plaintiff has a serious disability in the right hand. I assess her disability in the right hand as a percentage of a most extreme case at 28 percent." 30 The claimant submitted that this assessment by the trial judge was wrong, being based upon an erroneous understanding of the opinion of Dr Preketes and in any event manifestly excessive. 31 The quantum of an award of damages for non-economic loss was controlled by s 16 of the Civil Liability Act. Section 16(1) provides that no award for non-economic loss can be made unless the "severity of the non-economic loss is at least 15 percent of a most extreme case." 32 In the present case, counsel for the claimant conceded at the trial that the opponent was entitled to an award of damages for non-economic loss. On appeal, different counsel properly considered that the concession was binding. Its scope is another matter. I understand the concession to mean that the severity of the opponent's non-economic loss should be assessed as no less than 15 percent, which would entitle her to 1 percent of the maximum amount of $350,000, being $3,500. A determination that the opponent should be assessed at 28 percent of a most extreme case meant that she was entitled to an award of 14 percent of the maximum, which I calculate to be $49,000 although his Honour awarded $51,000. 33 In his report dated 14 October 2002, Dr Preketes states that the opponent's "prognosis is at best guarded, and I feel that she will not get full recovery of her right little finger which may in fact cause her the problems that she is experiencing in terms of her right hand and wrist." This opinion could underpin an award of damages for non-economic loss, and it would appear that his Honour relied upon it when making the assessment to which I have referred. 34 However, this was not the last report of Dr Preketes. In his report dated 28 March 2003 the prognosis changed significantly. In that report Dr Preketes said: "I have given May a good prognosis as long as she maintains her physiotherapy protocol which we have put in place and with my regular follow up we should be able to get her back hopefully to normal duties in a few months time." 35 Elsewhere in that report, Dr Preketes indicated that although the opponent may continue to have some difficulty with heavy weights or mowing the lawn, with physiotherapy she would be able to undertake her usual employment. 36 The report of 28 March 2003 was prepared after Dr Preketes had performed surgery on the opponent on 13 February 2003, in which he mobilised her extensor tendon which released and mobilised the little finger. Apparently the extensor tendon had originally adhered to the site of the fracture. The reasons of the trial judge contain no reference to the 28 March report and do not refer to the favourable prognosis. This may not have been significant but for the fact that the prognosis had so markedly improved from being "guarded" and without "full recovery of her right little finger" to being "a good prognosis", with the opponent "able to get back hopefully to normal duties in a few months time." I am satisfied that the trial judge failed to have regard to the favourable prognosis of Dr Preketes. 37 His Honour described the opponent's disability as "a disability in her right hand", without reference to any psychological or other problems. The manner of his Honour's description suggests that his Honour may have determined the extent of the disability by reference to the loss of hand function rather than by considering that loss having regard to the potential for injury to the entire body. I am satisfied that the opponent suffered a loss of some of the function of her right hand. However, her left hand was her dominant hand, and an assessment that the opponent had suffered a loss of 28 percent of a most extreme case was manifestly excessive. I would grant leave to appeal in relation to this aspect of the damages award and uphold the appeal. 38 In my opinion it is appropriate for this Court to assess the appropriate award for non-economic loss. 39 The concept of a most extreme case has been addressed under legislation prior to the Civil Liability Act. In Dell v Dalton (1991) 23 NSWLR 528 Handley JA observed that in the Motor Accidents Act 1988 (NSW) "a most extreme case" is not the subject of any statutory definition and the words have no technical legal significance. The debate in that case concerned whether a nineteen year old made a paraplegic as a result of a motor car accident should be determined to be a most extreme case. 40 Handley JA said at 532-533: "I do not accept the view that a plaintiff who has suffered no or minimal loss of expectation of life or no or minimal disfigurement cannot, as a matter of law, constitute 'a most extreme case'. Mr Donohoe's submission tacitly assumes that losses within each of the categories are equivalent or commensurable and that similar injuries will result in similar losses for all individuals. This was not so under the old law and I can see no reason for holding that the Act has altered the law in this respect. It is not unusual for a quadriplegic or paraplegic to suffer only a modest loss of expectation of life. Moreover while a quadriplegic or paraplegic will have suffered disfigurement at least in the shape and appearance of their paralysed lower limbs, such persons may not suffer any facial disfigurement as a result of their injuries. On the other hand a plaintiff who continues to experience extreme pain and suffering may find release in premature death. In such a case a diminished life expectancy may actually reduce the overall non-economic loss. The facts in Skelton v Collins (1966) 115 CLR 94, where the plaintiff was rendered permanently unconscious by his injuries and had a greatly reduced life expectancy, provide a graphic illustration of the fact that extreme loss in two of the categories can mitigate rather than aggravate the injured person's overall non-economic loss. Such a plaintiff would not constitute a most extreme case. The trial judge referred to the previous law in this respect and quoted a sentence from the judgment of Windeyer J in Thatcher v Charles (1961) 104 CLR 57 at 71. This was a dissenting judgment but the passage in which the sentence appeared accurately reflected the previous law and merits quotation in full. The judge said (at 71-72): '… In theory it might seem that the most serious physical injuries should always attract the heaviest damages. Therefore it is sometimes suggested that damages given in cases of paraplegia should be regarded as at the top of a scale and used as a basis for other estimations. But that involves an erroneous hypothesis. Compensable loss depends not only on the severity of the physical injury but on the consequences for the individual. No two injuries are really the same; and the consequences of apparently similar injuries vary infinitely for different individuals. Thus amounts given in different cases may be harmonious in principle, although appearing disproportionate when the physical injuries alone are regarded. Measuring in money such things as pain and suffering or the impairment of capacity to lead life to the full really involves dealing in incommensurables. It is an attempt to weigh imponderables. The law insists that it be done, but can give no sure guidance on how it is to be done.' " 41 In the present case, the evidence before the trial judge disclosed that the opponent sustained a comminuted fracture of her right fifth proximal phalanx. The fracture was reduced by the insertion of two percutaneous wires and when they were removed she was found to have stiff joints and required aggressive physiotherapy. However, due to her financial position the opponent did not complete the recommended physiotherapy. As I have related, the opponent underwent surgery in February 2003 which gave her a good range of movement in the finger with a better future prognosis. 42 The opponent understandably suffered some pain and was off work for about 14 weeks but has been able to resume normal duties. It is apparent that the motor car accident which she suffered on 2 September 2001 caused injury to her neck and back of the head and the fall on 28 January 2002 aggravated the neck pain and may have been responsible for some headaches. However, the evidence from Dr Popovic indicates that these problems were probably mostly caused by the motor vehicle accident rather than the fall. It was for this reason, no doubt, that the trial judge expressed his findings by reference to the disability in the right hand without reference to any other medical problem. 43 The opponent is left hand dominant and, although the injury may cause some impairment of the use of the right hand, any ongoing disability will not be great. No doubt like many people who suffer a fracture, the opponent may continue to be aware of some minor effect from time to time, but the evidence does not suggest any disfigurement and only indicates a small impact on her life. 44 The Civil Liability Act defines non-economic loss in the following terms: " non-economic loss means any one or more of the following:

(a) pain and suffering, (b) loss of amenities of life, (c) loss of expectation of life, (d) disfigurement." 45 The range of injuries which a person may suffer is infinite. As this Court made plain in Dell v Dalton, many different circumstances may constitute a most extreme case. Any judgment as to the severity of a person's loss as compared to a most extreme case is a matter of difficulty requiring the assessment of many factors. 46 The claimant is bound by the concession made by its counsel at the trial that the opponent was entitled to an award for non-economic loss. However, in my opinion when assessing the severity of that loss compared with a most extreme case it could be no higher than 15 percent. Application of the table in s 16 of the Civil Liability Act means that the appropriate award for non-economic loss was the sum of $3,500.

Future Economic loss 47 The trial judge recorded (at [8]): "There was no dispute that the plaintiff was entitled to damages for lost earning capacity although the quantum was a question for the court to determine having regard to the fact that the plaintiff was in permanent employment and, more likely than not, would remain so through to retirement." 48 However, at a later point in the reasons his Honour said, speaking of s 13 of the Civil Liability Act, (at [15]): "The defendant argued that this section would not permit any allowance for future economic loss because it could not be demonstrated that she was likely to suffer any loss of income or lost opportunity to earn income." 49 These two statements are not easily reconciled. However, before this Court, no point was taken by the opponent that the applicant had by reason of a concession disentitled itself from submitting that no award should be made for future economic loss. Accordingly, it is necessary to consider whether it was open to the trial judge to make the award. 50 The Civil Liability Act was introduced to confine awards for personal injury damages. In relation to economic loss, provision is made by s 12 for the maximum which may be awarded by reference to weekly earnings. Section 13 makes special provision in relation to future economic loss, and provides as follows: "13(1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury. (2) When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury. (3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted." 51 My understanding of the section suggests that the following steps are necessary when determining an appropriate award for future economic loss. Firstly, the court must determine the "most likely future circumstances" of a claimant "but for the injury." This requires the court to assess matters such as the prospects of a claimant gaining or remaining in employment, and for what period and also determine the rate at which he or she may earn during that employment; these are "assumptions about future or other events". Secondly, the court must make an adjustment to any award by reference to "the percentage possibility that the events might have occurred but for the injury." Thirdly, the assumption and the percentage must be stated. 52 This section was considered by this Court in MacArthur Districts Motor Cycle Sportsman Inc & Ors v Ardizzone [2004] NSWCA 145. Hodgson JA recognised some difficulties with the wording of the section and suggested that Parliament might consider some amendments (at [17]). I share his Honour's concerns. 53 One issue which troubled Hodgson JA was how a court was to undertake the task of making the adjustment required by s 13(2) by reference to events that "might have occurred but for the injury" which have been considered when coming to a view as to the claimant's "most likely future circumstances" in s 13(1). 54 Hodgson JA resolved the dilemma by looking to the manifest purpose of the section, which he identified as providing for the usual "vicissitudes" deduction. His Honour said (at [12]): "In my opinion, having regard to the apparent purpose of the section, 'the events' in s 13(2) must be those corresponding to the future economic situation of the plaintiff as it is understood to be resulting from the injury, not those corresponding to his future situation but for the injury." 55 In my opinion it is possible to give effect to the intention of the Parliament without undertaking the reinterpretation suggested by his Honour. Section 13(1) requires an identification of "the most likely future circumstances" of a claimant. These words do not permit an adjustment which recognises the chances of "the most likely future circumstances" failing to occur. When identifying the "likely future circumstances", all that the court must be satisfied of is that the assumptions which are made about "future earning capacity or other events" accord with "the claimant's most likely future circumstances." 56 It is s 13(2) which requires an adjustment to be made having regard to the "percentage possibility that the events might have occurred but for the injury." This requires a judgment to be made as to the chances of "the most likely future circumstances" occurring if the claimant had not been injured. In the ordinary course, and reflecting the conventional approach to vicissitudes (a discount of 15 percent), a court would assess there to be an 85 percent chance that an applicant would have experienced his or her most likely future circumstances. 57 Although this approach to the section resolves the first of the problems identified by Hodgson JA, it may not resolve the second ("positive vicissitudes"). It would require a positive adjustment under s 13(2) when clearly the subsection contemplates the assessment of the percentage of chance of the "most likely future circumstances" occurring which must always be 100 percent or less. 58 With respect to an award for future economic loss in the nature of a buffer, I doubt whether the section has any relevant impact. Although the section must be complied with, it will not lead to a conclusion which has any relevance to such an award. The court must determine the claimant's "likely future circumstances" and identify the pre-injury percentage possibility of those events occurring, but the compensation awarded is not otherwise confined. A modest award as compensation for the chance that a claimant may be disadvantaged in the future because of the injury is not precluded by the section. All that the section is attempting to do is identify the pre-injury circumstances upon which any award of damages may be based, but it does not dictate the outcome in the event that only part of a claimant's earning capacity has been affected by the injury. 59 In the present case, the trial judge addressed the matter of future economic loss and s 13 in the following terms (at [15-16]): "There was no dispute that the assumptions referred to in s 13 of the Civil Liability Act 2002 as to lost earning capacity required the court to consider the plaintiff's likely future course of employment if she had not been injured and to determine, now that she has been injured, the degree to which her earning capacity has been reduced. Most of her work has been clerical. There is some lifting, bending and writing in her daily tasks. The defendant argued that the section would not permit any allowance for future economic loss because it could not be demonstrated that she was likely to suffer any loss of income or lost opportunity to earn income. However, as I said, if the plaintiff lost her present employment, then, more likely than not, she would have grave difficulty obtaining alternative work. She therefore has a restricted earning capacity. This loss has to be assessed. The assumptions I find have been made out are that she would have worked to age 65 in a clerical time job if uninjured. She would have earned an average of about $450.00 per week net. Because of her injury she would not be able to obtain similar work if she needed to do so. The uncertainty of any occupation in today's workforce requires allowance for lost capacity even though the plaintiff continues to work. In my opinion, an appropriate award should be $15,000.00. It is likely that the plaintiff will have to undergo further treatment and may take time off work as a result. I have taken this into account in coming to my conclusion that some allowance for loss should be made. I also allow a further sum of $2,000.00 for future treatment." 60 I understand his Honour to have determined, as required by s 13(1), that the most likely future circumstances but for the injury would have the opponent employed in a clerical position until age 65 earning at a present weekly rate of $450.00 net of tax. However, his Honour did not determine the adjustment required by subsection (2) which, if the award was to be related directly to the loss of the whole or part of the weekly wage, would have been required. Instead, his Honour determined, as in my opinion he was entitled to do, that a "buffer" in the modest sum of $15,000 was appropriate. Even if his Honour had followed the requirements of the statute, having regard to the opponent's age of 53 at the time of this appeal with a most likely working life of a further fifteen years earning an average $23,400 per annum net of tax, an award of $15,000 is not excessive. 61 In my opinion this Court should grant leave to appeal confined to the question of damages, allow the appeal and assess damages as follows: Non economic loss $3,500 Past economic loss $6,425 Future economic loss $15,000 Past medical expenses $2,105 Future medical expenses $2,000 TOTAL $29,030

62 There was an issue in the appeal as to the basis on which the trial judge awarded indemnity costs. Whether it remains an issue may be affected by this reduction in the claimant's damages. Disposition of costs below and on appeal may be affected by the underlying offer of compromise, of which we are aware without knowing more. It was agreed that all matters of costs would be left for further submissions, so far as necessary, after publication of our reasons. 63 In my opinion the following orders are appropriate:

1. The claimant has leave to appeal against the judgment of the District Court with respect to the quantum of damages found by that court. 2. The appeal be allowed. 3. The amount of the judgment be varied by reducing the amount of it from $76,530 to $29,030. 4. List the proceedings before Giles JA at 9.30 am on Monday 28 June 2004 for orders by consent as to costs or directions for written submissions on outstanding issues of costs, as the case may be. **********

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