Sjostrom v McDermott

Court of Appeal (NSW)|2002-03-14|Before: Giles JA, Hodgson JA

CITATION : Sjostrom v McDermott [2002] NSWCA 80 FILE NUMBER(S) : CA 40295/01 HEARING DATE(S) : 14 March 2002 JUDGMENT DATE : 27 March 2002

PARTIES : Kenneth Sjostrom - Appellant Timothy John McDermott - Respondent JUDGMENT OF : Giles JA at 1; Hodgson JA at 51

COUNSEL : J Hislop QC & D J Russell - Appellant M Joseph SC & R Goodridge - Respondent SOLICITORS : Henry Davis York - Appellant Firths - Respondent CATCHWORDS : DAMAGES - whether accident caused the debilitating condition - extent of effects - percentage of a most extreme case - assessment of economic loss and domestic assistance - no question of principle. ND. CASES CITED: Dell v Dalton (1991) 23 NSWLR 528; Moran v McMahon (1985) 3 NSWLR 700. DECISION : (1) Appeal allowed; (2) Set aside verdict and judgment for $623,406 and in lieu thereof verdict and judgment for $538,295 taking effect on 5 April 2001; (3) No order as to the costs of the appeal.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40295/01 DC 7720/99

Wednesday 27 March 2002 SJOSTROM v McDERMOTT Judgment 1 GILES JA: This is a defendant's quantum appeal in a motor accident case. The plaintiff was injured when the defendant's truck ran into the rear of his car. The accident occurred on 17 October 1996. The plaintiff was then aged 28. Herron DCJ assessed the plaintiff's damages at $623,406, made up of - Non-economic loss $93,500.00 Past economic loss $97,983.00 Interest on past economic loss $18,188.00 Future economic loss $290,938.00 Lost superannuation $32,063.00 Domestic assistance $55,063.00 Past out-of-pocket expenses $25,671.00 Future out-of-pocket expenses $10,000.00 Total $623,406.00

2 The defendant's appeal challenged the items of non-economic loss, past economic loss, future economic loss and domestic assistance. Interest on past economic loss and lost superannuation could consequentially be affected.

The plaintiff's condition 3 The defendant submitted that the trial judge erred in finding that the plaintiff suffered from traumatic syringomyelia attributable to the accident. Syringomyelia is a condition in which the central canal of the spinal cord is enlarged and the spinal cord is affected. It can occur in the ordinary course as part of aging, but can also be caused by trauma or infection. 4 The plaintiff left school at 16, half way through year 10, and lacked writing skills. He obtained a trade as a printer, and worked at a number of printing firms. His printing skills were overtaken by new technologies, and on 7 August 1996 he took up employment as a plumber's labourer with Axis Plumbing Services. It was reasonably heavy work of a labouring nature. About three weeks before the accident the plaintiff suffered an injury to his finger, and he was not working and was receiving worker's compensation payments at the time of the accident and for a time thereafter. 5 The plaintiff said that in the accident "my neck felt like it had been chopped off", and that there was immediate pain. He drove to Milton Hospital. The hospital notes recorded "Painful neck - jarred" and referred to "Whiplash injury". An x-ray was taken, but no abnormality was visible. The plaintiff went home. He said that he was very uncomfortable and distressed by the pain, which remained. 6 The plaintiff returned to work with Axis Plumbing Services on about 19 November 1996. He said that he was on a light job and could cope. After a little while he was put on a new job where the work changed, and he found it harder. As a result, on 19 December 1996 he consulted a general practitioner, Dr Sivarajah, about his neck. Dr Sivarajah found that the flexion, extension and lateral movements of the neck were painful. Another x-ray was taken, which was reported as essentially normal. Dr Sivarajah sent the plaintiff for physiotherapy, and he had regular physiotherapy thereafter. 7 The plaintiff's condition did not improve, and on 5 March 1997 he saw a different general practitioner, Dr Sciacca. He complained of shoulder and neck pain, and on examination Dr Sciacca found tenderness with a good range of movement but tight quad testing to the left. Dr Sciacca referred him to Dr Manohar, a specialist in musculo-skeletal medicine and rehabilitation, who diagnosed musculo-ligamental strain and arranged for an MRI scan "to look for the probabilities of an annular tear to the cervical disc". The MRI scan was read by Dr Manohar as evidencing a C7/T1 annular tear with a small disc protrusion. The plaintiff was treated with analgesics and exercises. 8 Following the MRI scan Dr Manohar wrote a letter stating that the plaintiff was fit only for light duties. It was sent to Axis Plumbing Services. On 8 April 1997 Axis Plumbing Services told the plaintiff that it had no light duties for a plumber's labourer and that he should take leave until he was fit for full duties. His paid employment with Axis Plumbing Services ceased, although it seems that he did not formally resign until early 1998. 9 Dr Manohar referred the plaintiff to Dr Compton, a neurological surgeon. In a report dated 11 April 1997 Dr Compton noted the history of immediate pain in the accident and continued neck pain and stiffness, but continued - "I could find nothing of significance in his past history and nothing of significance in his system review. On examination I found him to be a fit man. He had a non-tender cervical spine and a reasonable range of cervical movement today. His MR scan looked to me be [sic] a pretty high quality investigation and I could see no evidence of relevant abnormality. I must confess that I don't believe that surgery would help this young man but I don't believe further tests are indicated at this stage." 10 The plaintiff continued to see Dr Manohar with neck and shoulder pain. He must have returned to Dr Sivarajah, since for a time after April 1997 Dr Manohar's reports were addressed to Dr Sivarajah. Over a long period Dr Manohar found restriction in cervical movements and discomfort, with varying language and detail in his reports. Physiotherapy was continued, and the C5/6 and C6/7 levels were infiltrated. There was no relief. 11 On 27 January 1998 the plaintiff began work on a part-time basis as an assistant in air conditioning businesses. He said that until April 1998 he worked first for one employer and then for another employer, on an average of three days a week for between four and eight hours a day: as will appear, it seems that he was in error and worked until 4 September 1998. He worked for the first employer only for a few weeks. The employment came about by word of mouth through friends. The work involved measuring and recording air-flow, and the change in employers was because the first job did but the second job did not require lifting a tool box. The plaintiff said that he could initially cope, but that when it became necessary to get into roofs or assemble air conditioning equipment he found it difficult. The employment ended when the second employer ceased his air conditioning business. The plaintiff did not work thereafter. 12 In January 1999 Dr Manohar arranged a further MRI scan. He read it as showing a syrinx, and referred the plaintiff to a consultant neurosurgeon, Dr Matheson. 13 Dr Matheson saw the plaintiff in May 1999. His report of 4 June 1999 recorded the history - "His problems began in August 1995 when he was in a vehicle which was rammed from behind by a truck. He had immediate neck pain and was taken to Middleton [sic] Hospital. He was x-rayed and sent home. He was offered a collar at the time but his neck was too uncomfortable to wear it and in my view he is probably better off without it anyway. He had some pain going to the left shoulder. He was off work for about ten months and then did some air conditioning work on a casual basis but that did not last . He has also done some printing work. At the time of the accident he was working as a plumber's assistant. He has not been able to pursue physical work and is unemployed at the moment. He gets neck pain which is low in the neck and goes down to the interscapular region. He gets discomfort across his left shoulder." (emphasis added) 14 Dr Matheson read the MRI scans as showing a small syrinx extending from C4 to C7. He found stiffness and tenderness on examination and "subtle neurological changes". He diagnosed traumatic syringomyelia, saying - "I do not think there is much doubt here that he has had a traumatic subluxation at the C5/6 level with a bump to his cord, giving him his residual symptoms. Certainly the disc at that level is abnormal and centered over the area of his small syrinx. We are not too sure of the natural history of his condition and I think most of these traumatic syrinxes do not progress but the occasional one does and therefore we will just have to sit and watch him. I have not recommended any specific treatment at the moment other than to re-train him into non-physical work. At this stage operating on his neck may produce no improvement. I would watch him from time to time and think he should have periodic MRI scans to make sure that the syrinx is not extending." 15 The plaintiff continued his regular consultations with Dr Manohar and occasional consultation with Dr Matheson, and continued with conservative treatment under the former's supervision. In his evidence he said that he had "pretty well constant" pain, at the time of the trial in April 2001 "absolute constant". He had problems in sleeping, with consequent feelings of exhaustion, and difficulty in driving for any period. He became irritable and depressed. He could not walk for more than half or three-quarters of an hour, and even sitting in the one spot for a period exacerbated the neck. None of exercises, acupuncture, hydrotherapy or analgesics provided significant relief. 16 The trial judge plainly accepted the substance of the plaintiff's complaints. It seems that at about the end of 1998 the plaintiff had returned to Dr Sciacca, whom he also saw regularly, and in a report to the plaintiff's solicitors dated 27 September 2000 Dr Sciacca said - "He has been suffering from pain in the neck, shoulder, back of the head, and this year, all the above with symptoms of major depressive disorder with much anger and frustration especially at being unable to have a normal life with his young child. He is unable to participate in physical activity with him and he is unable to participate in personal activity with his wife. Mr McDermott continues to have gros restrictions in movement in his neck and shoulder with tenderness in both sides of the base of the skull and in the low part of his neck, C5/6 and C6/7. He has no positive neurological signs. These are a direct result of his motor vehicle accident on October 17 1996. His prognosis is very poor. He is permanently unfit for any physical work (especially his pre-injury employment of labouring). Future treatment will be based on anti-depressants and as needed physiotherapy to his neck. I am unable to estimate the cost of this and suggest you discuss this matter with his physiotherapist. All treatment to his present condition is directly related to the accident. Ideally, employment for Mr McDermott would be of a self-employed nature, where he is able to work at his own pace, rest when the need arises, and where lifting and carrying, etc, would be at a minimum. He is completely unfit for work as a labourer, especially for a plumber or builder. Due to restriction in his arm movement and power, Mr McDermott would also be unsuitable for work as a printer. He is permanently partially incapacitated to work and this is due solely to the motor vehicle accident of 1996. He is having a great problem just interacting lightly with his child. Heavy home work such as mopping and vacuuming is out of the question for him." 17 The trial judge said that he considered that a general practitioner was often in a better position to assess a patient than a specialist, being generally closer to the patient. Apart from his particular reliance on Dr Sciacca, he later said - "If I may digress, a matter to which I have not referred perhaps is that all the matters referred to in the doctors' reports which were given to them by way of the history were virtually confirmed by the plaintiff in the witness box and more importantly his wife gave evidence and she confirmed the problems which her husband was having. I think that that was strong corroborative evidence, if it was needed, of the problems that this man has had." 18 The trial judge accepted Dr Matheson's diagnosis of traumatic syringomyelia, saying "I think the probabilities are, firstly, that the plaintiff is suffering in the way in which he said he was suffering and that it is due to this syrinx involvement." Dr Manohar had adopted this diagnosis, although it is not clear whether he professed the same expertise as Dr Matheson. At a later point, after considering the other medical opinions, the trial judge said that - " … the probabilities are in my view having regard to the reports which I have referred to emanating from the plaintiff's medical practitioners, that indeed he is suffering the problems he suffers and they can be explained in the way in which Dr Matheson explains them. And I think I have already said that it seems to me the probabilities are that this man's condition are due to the trauma and not to natural causes."

19 There were other medical opinions. One was the opinion of Dr Compton to which I have referred. The other was that of Dr Mellick, a consultant neurosurgeon, who reported in March 2000. Dr Mellick found no distress or abnormality in function and "no features of organicity" on examination, and although he saw in the MRI scans some disc abnormality and a minor dilation of the central canal he considered that the history and the examination "does not lead one to conclude that there is a significant existing disorder, nor that the accident in 1996 was a serious traumatic event involving deeply sited injury". With exquisite politeness, he expressly disagreed with Dr Matheson's diagnosis of traumatic syringomyelia. 20 None of the doctors gave oral evidence. The trial judge was left to choose between the conflicting opinions without exploration in the evidence of their strengths or weaknesses. He fully recognised the differing opinions. His preference for the diagnosis made by Dr Matheson, including that the condition was attributable to the accident, was plainly enough influenced by his acceptance of the plaintiff's evidence that had experienced neck pain immediately after the accident and (as particularly supported by Dr Sciacca and the plaintiff's wife) had thereafter had the pain and restrictions of which he complained. 21 The appellant rather indirectly submitted that the trial judge should not have accepted the plaintiff in these respects. He said that the plaintiff had been able to drive to the Milton Hospital, and had not been found at that hospital to have any serious injury; that the plaintiff had not seen Dr Sivarajah in relation to his neck for two months thereafter, and in particular had not complained of his neck to a Dr Kariappa whom he had seen in relation to another matter a few days after the accident; and that the plaintiff had been able to return to work with Axis Plumbing Services in November 1996 and keep working until April 1997. Indeed, the defendant said, the plaintiff had told Dr Mellick that he would have kept on working with Axis Plumbing Services if the letter about light duties had not led to his dismissal. 22 These were matters properly to be put to the trial judge, and it is evident that they were put to him. They were far from compelling. The plaintiff did complain of neck pain at Milton Hospital, and it meant little that the x-ray then taken showed no problem and the plaintiff was then sent away because at no time did an x-ray show a problem. The plaintiff said that he did not go to Dr Sivarajah at an earlier time because he did not think that anything more could be done, and the trial judge specifically accepted that explanation. The work with Axis Plumbing Services was light work, and when it changed the plaintiff found it hard to cope. Apart from the trial judge's assessment of the plaintiff and the plaintiff's wife and his reliance on Dr Sciacca, there was a mass of evidence from the plaintiff's general practitioners, from Dr Manohar, from Dr Matheson, and from various rehabilitation assessors which expressly or impliedly involved conclusions that the plaintiff had the pain and restrictions of which he complained - for example, one of the rehabilitation assessors expressly found the reported pain to be consistent with observations. The trial judge's acceptance that the plaintiff was injured as he said can not be gainsaid on appeal. 23 The appellant submitted that the trial judge's preference for the opinion of Dr Matheson was ill founded in that Dr Matheson had relied on a history which included that the plaintiff had not worked for ten months after the accident: see the underlined sentence from the passage in his report earlier set out. This was not correct, it was said, and so the opinion of Dr Matheson was undermined and should be put aside in favour of the opinions of Dr Compton and Dr Mellick. The history as recorded by Dr Matheson was incorrect in that respect. But the basis for his opinion remained, that the plaintiff had the pain and restrictions of which he complained on and from the time of the accident, notwithstanding that he was able to perform light work for Axis Plumbing Services until April 1997. I do not think reliance on the opinion of Dr Matheson was materially impugned. 24 Then the appellant submitted that the trial judge did not sufficiently explain his preference for the opinion of Dr Matheson in the face of the conflicting opinions of Dr Compton and Dr Mellick. The trial judge recognised the conflicting opinions, and referred to Dr Mellick's report in some detail. It is quite clear why he took the view he did. Contrary to Dr Compton's view, there was abnormality in the plaintiff's cervical spine. Contrary to Dr Compton's and Dr Mellick's views, the trial judge found that the plaintiff was not a fit man and was distressed and affected in his functioning. His problems came with the accident. When the trial judge accepted that the plaintiff had experienced neck pain immediately after the accident and had thereafter had the pain and restrictions of which he gave evidence, the preference for the opinion of Dr Matheson was well open to him. No more detailed exposition was necessary.

Non-economic loss 25 The appellant submitted that the trial judge's non-economic loss was excessive. The trial judge considered that the plaintiff came in at 33 per cent of a most extreme case. The defendant submitted that 20 per cent was a more correct proportion. 26 I have already said something of the effect of the accident on the plaintiff as accepted by the trial judge. He had had constant neck pain sufficient to preclude all but light work. His prognosis was poor, and he would be likely to continue to have pain for the rest of his life, over forty years. Dr Matheson said he had "full blown chronic pain syndrome with irritability, financial stress, marital stress and pain and this has a notoriously poor prognosis". 27 The plaintiff said that with ordinary activities his neck "continually always feels like its pushed forward", and after walking for a short time it "actually feels like its been chopped off and then put back down in the wrong position". He was particularly frustrated by inability to do things around the home and play with his young son, and by fears of how much worse he might become in future years. The trial judge quoted with apparent acceptance from a report by Dr Manohar written shortly before the trial - "He still has neck pain and left shoulder pain. He is unable to work without pain or play with his four year old son. His son does gymnastics, indoor rock climbing and martial arts and Tim is unable to help him with these activities. He tells me his neck feels as though it is being squeezed. He is unable to sleep at night or have sexual relations with his wife. He has started smoking again. He has severe difficulties in undertaking most activities of daily living. He is feeling angry and depressed. There is a tight feeling over the left para cervical muscles and trapezius, the movements are reasonably good but he tells me that repetitive movements cause pain." 28 The trial judge said - "The plaintiff (and I have to say this although of course he is present) presents as a very concerned young man, not happy at all. That is putting the matter at its lowest. I am not a psychiatrist of course but there are references in the medical reports to the fact of his being, if I can use an expression, 'down' in the sense that as some of the doctors say he appears to be miserable." 29 The assessment of an appropriate proportion of a most extreme case is not readily susceptible of appellate review: it involves questions of fact and degree, and matters of opinion, impression, speculation, and estimation, calling for the exercise of commonsense and judgment. This Court is entitled to intervene only if the trial judge applied a wrong principle of law, misapprehended the facts or made a wholly erroneous assessment. These principles, taken from Dell v Dalton (1991) 23 NSWLR 528 at 533-4 and its incorporation of Moran v McMahon (1985) 3 NSWLR 700, were not questioned in the appeal. The defendant submitted that the trial judge erroneously approached his assessment "on the basis [the plaintiff] had extreme problems with his neck". The trial judge did use those words, but they must be understood in the light of the more detailed findings of the plaintiff's pain and restrictions, and bearing in mind that the trial judge did not find that the plaintiff was completely incapacitated. 30 Given the trial judge's view of the plaintiff's condition and its effects on him, the proportion as found may have been high but in my opinion it was within the range reasonably open to the trial judge.

Economic loss 31 The appellant submitted that the economic loss was excessive because the trial judge had incorrectly taken an uninjured earning capacity of $500 net per week and a residual earning capacity of $100 net per week. He said that the former was contrary to the evidence and the latter was controverted by the plaintiff's demonstrated earning capacity from his work in the air conditioning businesses. The defendant submitted that only cushions of the order of $25,000 for the past and $60,000 for the future should have been given. 32 After saying that the assessment of damages is not a matter of mathematical calculation but a matter of judgment and common sense, the trial judge continued - "So far as past economic loss is concerned I would fix upon a figure of $500 a week. It seems that the plaintiff was able when he was working to earn something over $800 gross, but it seems to me for the purpose of assessing past economic loss I should fix upon a figure of $500. … But getting back to this question of damages I was talking about past economic loss. I enter the realm of guesswork in all this really, but I would fix upon a figure of $500 a week. There are 208 weeks and that would give a figure of $104,000. There is an amount of $6,017 which has to be taken away from that which was in fact the amount earned by the plaintiff over that 208 weeks period and so there is a net figure of $97,983. I will not discount that because I have already made a discount in relation to reducing the suggested $540 for example to $500 and at the risk of repeating myself I enter the realm of guesswork in all this. Now so far as future loss is concerned, having regard particularly to what Dr Matheson says I would not treat the plaintiff as being totally incapacitated as it was suggested. He of course is not totally incapacitated. What was suggested was that he would find it extremely difficult to sell his labouring capabilities, if I can use that expression, in the market place. This is well known that a person who is injured will have problems in getting a job. Not only would a prospective employer be concerned as to whether the injured person could do the job, but in this day and age there would be insurance problems, workers compensation problems and the like which are common knowledge and there is no doubt that an injured worker has problems getting a job. But I think that I would assess the plaintiff's work capacity to have been reduced twenty per cent [sic] and therefore his capabilities are now only eighty per cent [sic] of his capabilities before this accident. If one took the $500 which I fixed upon in relation to past economic loss, applying that percentage figure there would be a loss of $400 a week. There is approximately thirty-three years to the end of his working life. The present value one dollar a week for thirty-three years using the five per cent tables is $855.70. If one multiplies that by 400 a figure of $342,280 emerges, to which I would apply the conventional fifteen per cent deduction so that gives a figure of $290,938." 33 The trial judge delivered his reasons orally. It is evident that, by a slip of the mind, he transposed 20 per cent and 80 per cent in the penultimate paragraph of this passage, as the figure for loss shows. This was clarified in discussion after delivery of the reasons, and it was accepted in the appeal that the trial judge meant to express an 80 per cent loss of earning capacity. 34 The evidence going to the value to be placed on the plaintiff's pre-injury earning capacity was remarkably confused. It can be summarised as follows. (i) The plaintiff's income tax return for 1994-95 and the relevant group certificates showed wage income from employment as a printer - 1 September 1994 - 22 September 1994 $1,689.00 5 October 1994 - 10 March 1995 $14,450.00 13 March 1995 - 30 June 1995 $13,872 $30,011.00

This represented approximately $563, $656 and $867 gross per week. There were three different employers. Any abnormal contribution to the income as returned, which might have explained the divergent figures, was not revealed.

(ii) The plaintiff's income tax return for 1995-96, without group certificates, showed wage income from employment as a printer of $17,082 and from other unclear occupations of $245, $184 and $1,390; it also showed apparent social security benefits of $2,189. This averaged approximately $405 gross per week, although a weekly averaging is probably not appropriate; what else is appropriate it is not easy to say.

(iii) The plaintiff's income tax return for 1996-97, also without group certificates, showed wage income from the last employer in the previous return of $2,382 and then from Axis Plumbing Services of $18,893; it also showed apparent social security benefits of $1,595. If the wage income from Axis Plumbing Services alone be taken, over the period 7 August 1996 to 8 April 1997 the average is approximately $525 gross per week. Whether a weekly averaging is appropriate may perhaps be questioned, because of the period on workers' compensation, but that is where it was left. There was no evidence that the income did not include the plaintiff's worker's compensation benefits for the time he was off work during that period of employment, and the worker's compensation benefits were not otherwise in the income tax return; there was no evidence of the rate of compensation.

(iv) Two pay slips for the plaintiff's employment with Axis Plumbing Services for the weeks ending 11 March and 25 March 1997 were tendered, without other explanation. They showed an hourly rate of pay of $12.97. Putting aside fares and travel and other allowances, for the first of the weeks the plaintiff was paid for 24 work hours and 24 hours travel time; the gross remuneration for 48 hours was $622.56, although the actual gross remuneration including allowances was $1,513.91. For the second of the weeks the plaintiff was paid for 31 work hours and 4 hours travel time; the gross remuneration for 35 hours was $453.95, although the actual gross remuneration including allowances was $761.84.

(v) A manuscript "calculation to 8.4.97", apparently from Axis Plumbing Services at the time the plaintiff ceased work, was tendered. It showed an hourly rate of pay of $12.97 and what appears to have been a calculation of the plaintiff's termination payment. It referred to "avg wkly gross" of $560.00. There was no explanation of the document. 35 However all this be looked at, the something over $800 gross per week to which the trial judge referred can not readily be seen. The remarkably divergent earnings as a printer were in the past, the allowances must have been occasional, and the earning capacity as a plumber's labourer seems to have been of the order of $525 gross per week. No one attempted to reduce this to a net figure. The plaintiff was subject to the Medicare levy, and had not inconsiderable other income from capital gains from property and investments. It was for the plaintiff to establish his position, and he did not do so. Precision is not possible on the materials as they were left. In my opinion the best estimate possible is a figure of the order of $420 net per week. 36 The trial judge referred to "the suggested $540", which he reduced to $500. It seems his Honour meant this to be a net figure. We were informed that the parties agreed before the trial judge that a figure of $540 net per week in the plaintiff's calculations handed up to the trial judge in addresses was mathematically the average from the plaintiff's pay slips for eight weeks in his employment with Axis Plumbing Services. The parties were not able to tell us which weeks were taken, and the eight pay slips were not in evidence. 37 I do not think the $540 net per week can be taken as a sound guide. As is evident from the two pay slips in evidence, the plaintiff's earnings varied greatly, and without knowing something about the eight weeks they are not necessarily representative. Nor in the absence of more knowledge is the manuscript calculation of assistance. The plaintiff was essentially selling his unskilled labour, as his printing skills were out of date. The most sound guide is his earnings over the longer period of employment with Axis Plumbing Services as returned in his income tax return. In my opinion a pre-injury earning capacity of $420 net per week, not the $500 net taken by the trial judge, should have been found. The difference is enough to warrant correction on appeal. 38 The trial judge considered that the plaintiff was not totally incapacitated. He plainly thought that his incapacity was such that he would nonetheless have great difficulty in getting a job. With the exception of his earnings from Axis Plumbing Services after the accident and in the air conditioning businesses there was no evidence of the usual kind showing what the plaintiff might have earned if he had been able to get a job within his capabilities. 39 The defendant submitted that the trial judge's assessment effectively of a residual earning capacity of $100 net per week was belied by the earnings from Axis Plumbing Services after the accident and in the air conditioning business. The earnings from Axis Plumbing Services after the accident have already been described. The evidence of earnings in the air conditioning business was also confused. It can be summarised as follows.

(i) The plaintiff said that his earnings from the air conditioning business averaged $400 per week. It was not clear whether this was gross or net.

(ii) It was put to the plaintiff, and he agreed, that a document produced by the second air conditioning employer showed a first payday 17 February 1998 and a last payday of 4 September 1998 and gross pay of about $19,000 and net pay of about $15,400. Apart from the figures, this amounted to correction of the plaintiff's earlier evidence that he had worked in the air conditioning businesses until April 1998.

(iii) The trial judge was told by counsel for the plaintiff that the net figure was incorrect, that "the tax return will be before your Honour" and would show the exact figures, and that the correct gross figure was $507 per week. This seems to confirm the correction to the plaintiff's evidence as to the period for which he worked in the air conditioning businesses, although it would result in gross pay of $14,196 not $19,000 for the paydays from 17 February 1998 to 4 September 1998. (iv) The plaintiff's income tax return for 1997-98 showed income other than from social security benefits and dividends, described as income "from business", of $12,441. If representing the earnings in the air conditioning businesses, this was approximately $578 per week. It was not otherwise explained. At $578 per week the gross pay for the paydays from 17 February 1998 to 4 September 1998 would be $16,184.

(v) The plaintiff's 1998-99 income tax return was not in evidence. Nor was the document produced by the second air conditioning employer. 40 The defendant said that on any view the plaintiff had a significant earning capacity doing light work. He pointed out that the plaintiff told Dr Mellick that he would have continued with Axis Plumbing Services if light work had been available, and that Dr Matheson had said that with retraining the plaintiff could eventually find suitable light employment. On the other hand, the plaintiff had perhaps fortuitously been able to continue for a time with Axis Plumbing Services and obtain employment in the air conditioning business through friends; those employments were not truly a reflection of his earning capacity in the labour market. 41 The trial judge was left to reach a decision in unsatisfactory circumstances. He could have found a high figure for possible earnings reflecting residual earning capacity, but then would have had to make a considerable allowance for the likelihood that the plaintiff was unable to find suitable employment. The ultimate question was the loss to the plaintiff from his reduction in earning capacity, which took in the likelihood of his obtaining work as well as what he might earn if he was able to obtain work. The trial judge did not expose the process of reasoning, but went straight to the result via a percentage reduction in work capacity. The defendant did not challenge the process but only the result given what he said was a demonstrated earning capacity. I am not persuaded that, once the circumstances of the continued employment with Axis Plumbing Services and the employment in the air conditioning businesses are recognised and regard is had to the difficulty the trial judge considered the plaintiff would have in finding suitable employment, the result has been shown to be appealably wrong. 42 In my view the plaintiff was entitled to more than the cushions suggested by the defendant. Following the trial judge's methodology, for past loss of earning capacity the trial judge's figure of $104,000 would be replaced by the figure of $87,360. The deduction of $6,017 appeared in the plaintiff's calculations handed up to the trial judge, but in the appeal its provenance could not be explained. It was not an agreed figure. It must have been wrong, since the plaintiff had earned either $15,400 net or some lesser figure representing the $14,196 or the $16,184 net of income tax. In the state the evidence was left the clearest figure should be taken, again it being for the plaintiff to establish his position, that being the $15,400 which the plaintiff agreed was shown in a document from the second air conditioning employer. In favour of the plaintiff, whatever, was earned working for the first air conditioning employer is ignored by taking this figure. It should replace the deduction. The past economic loss should be corrected to $71,960. 43 Adopting the same 80 per cent loss of earning capacity for future economic loss and repeating the trial judge's calculation, but taking 80 per cent of $420 rather than $500, the figure of $244,388 should replace the trial judge's figure of $290,398.

Domestic assistance 44 The defendant submitted that the domestic assistance was excessive because it was erroneously arrived at by comparing the plaintiff's domestic workload immediately before the accident with his capacity after the accident. This was erroneous, it was said, because the domestic workload before the accident was "distorted by the fact that [the plaintiff's] wife was then pregnant and [the plaintiff] was engaging in additional duties as a result thereof". 45 The trial judge said - "There is then a claim which has been described as a Griffin v Kerkemeyer [sic] claim which has given me a great deal of problems. It is suggested that not only should the plaintiff's needs be met by allowing seven hours per week assistance at $16 a week [sic], but also that there should be included in his damages, again to meet a need, a handyman and gardener's costs. The plaintiff gave evidence that his wife did the gardening which was demeaning, but leaving that comment aside, Mrs McDermott for example said that before the accident house duties were divided by the plaintiff himself doing sixty per cent of the cooking and then also that he did thirty per cent of the vacuuming and she did seventy per cent and the plaintiff did all the outdoor chores including looking after the pool, and that since the accident she vacuums and cleans the car, the dog, pool, mows the law. I think that in this case the parties have really readjusted their tasks. I am not satisfied on the evidence which has been put before me that the claim which is put with respect is justified. I think that a need has been created for the defendant to have some domestic assistance, but doing the best I can I would assess that assistance as involving four hours a week. The present life expectancy of the plaintiff is something in the order of sixty years. The present value of $1 a week using the five per cent tables of sixty years is $1,012,20, $64 by that gives a figure of $64,780 and I would apply the conventional fifteen per cent discount to that which gives a figure of $55,063. That involves me again entering the realm of guesswork but it seems to me that that would be fair and reasonable in all the circumstances." 46 I do not think that the trial judge did arrive at the domestic assistance in the manner suggested by the defendant. He said that he thought the plaintiff and his wife had readjusted their tasks and that he was not satisfied that the claim for domestic assistance as made by the plaintiff was justified. He said that he came to the four hours per week doing the best he could, and that he was in the realm of guesswork but considered that to be fair and reasonable in all the circumstances. From the trial judge's acceptance of the plaintiff's evidence, he clearly thought that there was a need, although not at the level for which the plaintiff contended, and made a modest estimate. I do not think that error in his estimation has been shown. 47 The plaintiff accepted that the trial judge had calculated the domestic assistance on an erroneous life expectancy of 60 years when it should have been 50 years. The adjustment is $1,958.

Consequential adjustments 48 The adjusted interest on past economic loss is $13,358. The adjusted lost superannuation is $26,313. In each case I have followed the trial judge's apparent methodology, as was agreed in the appeal should be done.

The result 49 The plaintiff's damages are reduced by $85,111. The defendant had some success in the appeal, but did not overturn the core finding of traumatic syringomyelia attributable to the accident. The plaintiff unsuccessfully defended economic loss. In my opinion justice is served by each party paying his own costs.

Orders 50 1. Appeal allowed. 2. Set aside the verdict and judgment for $623,406 and in lieu thereof verdict and judgment for $538,295 taking effect on 5 April 2001. 3. No order as to the costs of the appeal. 51 HODGSON JA: I agree with Giles JA. **********

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