Hall, Brian Matthews & Anor v Tarlinton, Dennis Albert [1978] FCA 34

> fe Disv.

CATCHWORDS

Damages - assessment - loss of earning capacity - deductions for cost of earning income and for maintenance - allowance for favourable and unfavourable contingencies - allowance for cost of full-time

assistant for quadriplegic - allowance for pain and suffering.

HALL §& ANOR, vv. TARLINTON

No. FC 23 of 1977

CORAM: Blackburn, Nimmo and St.John JJ.

27 April 1978

Canberra

+ . a a ws da oa

wey

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY REGISTRY

GENERAL DIVISION

JUDGES MAKING ORDER:

DATE OF ORDER:

WHERE MADE:

THE COURT ORDERS THAT:

No. FC 23 of 1977

BRIAN MATTHEW HALL and ROBERT J. McKAY

against

DENNIS ALBERT TARLINTON

ORDER

Blackburn, Nimmo and St.John JJ.

27 April

Canberra

1978.

1. The Appeal be dismissed with costs.

+ ein, ©

re wey.

IN THE EBDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY REGISTRY

GENERAL DIVISION

No. FC 23 of 1977

BRIAN MATTHEW HALL and ROBERT J. McKAY

against

DENNIS ALBERT TARLINTON

CORAM: Blackburn, Nimmo and St.John JJ.

27_April 1978

JUDGMENT

This appeal is from a judgment of Connor J. in the Supreme Court of the Australian Capital Territory given on 2 December 1977. The action was for damages for negligence causing personal injuries, and the learned trial judge gave judgment for the plaintiff in the sum of $409,716.29. The appellants, defendants in the Court below, appealed on both liability and damages, but at the hearing of the appeal, counse} in opening intimsted that he would make submissions only on the question

of damages.

eT

The respondent's injuries were catastrophic. Before the accident he was a qualified fitter and machiner who was highly regarded by his employer as an excellent tradesman and a conscientious and hard werking employee. He is now 26 years old, and has a life expectancy of from 30 to 35 years. He is a quadriplegic, with very little movement in his erms and hands, he is sexually impotent, he has no control over his bowels and bladder, and he is subject to violent spasms which may be strong enough to throw him out of a chair, and necessitate the presence near him of some other person at all times, night and day, so

that he can be meved and assisted should a spasm occur.

The learned trial judge assessed the damages with great care and expressed his reasons precisely. It 1s convenient to set out here the summary, made by the trial judge at the end of his judgment, of

the manner in which the final assessment of damages was reached.

"Special damages $25,716.29 Loss of wages from accident to trial $24,000 reduced to 21,000.00

Modifications to parents' home 3,000.00

Future medical treatment 10,000.00 Cost of paraplegic equipment and

extra cost of annual holidays 14,000.00 Special car seats 3,000.00 Future economic loss $100,000

reduced for lost years etc. to 95,000.00 Cost of future institutional care

$108,008 redweed for overlap

in feed and ladging to 81,000.00 Cost of assistant for plaintiff

$87,006 reduced for

contingencies to 80,000.00 Loss of expectation of life 2,000.00 Pain, suffering, loss of amenities 75,000.00

Total $409,716.29"

Ceunsel far the appellants made no general challenge to the whole ampunt of demages on any principle affecting the whole award, but made separate submissions on several of the particular matters. With these we deal seriatin.

The first matter was the amount of $21,000 which was allowed by the trial judge te represent the respondent's loss of earning cepacity (measured in terms of loss of wages) between the time of the accident and the time of trial. At the trial it was agreed that a figure of $24,000 represented the gross amount (apart from tax) which the respondent could have earned if he had been employed for the whole of that period at the rate of wages which he was earning at the time of the accident. From this amount, the learned judge made a deduction

of $3,008 for the sum of several matters in respect of which sub-

missions were made to him, namely the possibilities that the opportun-

o-

ities of working over-time might be reduced, that he might be retrenched

from employment, and that he might have taken an extended holiday for some of his working time; also for the expenses of earning his income, ané@ for that pert of the smount paid to hospitals, repaid to him as special damages, which represented the cost of his own maintenance.

Nefeve this Cevrt counsel for the appellants contended that, on the

evidence the deduction of $3,000 was too small. We have considered this

contention, and we agree with the learned trial judge that it is im- possible to be precise about this matter. We cannot be satisfied that the triel judge was. wrong in his conclusions; on the evidence, $21,000 was e@ figure which he could reasonably have determined. On this point, therefore wa have to reject the submissions of counsel for the

sppellants.

} + tov e gee a mw, ype tl ARR og

-4-

The next matter in respect of which counsel criticized the judgment was in the calculation of the plaintiff's future economic loss. It ts accepted that as a result of the accident, the respondent is un- employable for the rest of his life, and also that his life expectancy is reduced to 36 to 355 years from the date of the accident. The law as set out and applied by the High Court in Skelton v. Collins (1966) 115 C.L.R. 94, and Sharwan v. Evans (1977) 13 A.L.R. 57, is that in making a@ calculation of future economic loss, a deduction must be made for the expenses connected with the earning of income; the plaintiff will not have to incur those expenses since he cannot earn any income. That is an allewance which, in the first place, has to be made for the period during which, had it not been for the accident, he would have expected

to be earning wages or a salary.

It is also the law that in every case it has to be asked whether a deduction must be made from the amount assessed for loss of earning capacity, for the cost to the plaintiff of maintaining himself and his dependants, (if any). The test is whether, if this deduction were net made, "an element of double compensation would intrude", as Gibbs and Stephen JJ. put it in Sharman v. Evans at p.69. The deduction is calculated, in the first place, for the period of the plaintiff's post-aecident (i.e. actual) life expectancy, and secondly for the period (if any) during which he would have been working had 1t not been

for the sccident (the so-called "lost years").

In the case before us the learned judge's method of dealing

with these deductions was as follows. He made a deduction for the cost to

7 . . a , a rapes Baye, of ye

Ll gee

the pisintiff of maintaining himself, during his actual life expectancy, in a nominally different, though equally effective, way, i.e. by apprepristely redwcing the amount he allowed for the hospital charges the pheintiff would imcur. That method of dealing with the matter had the eppreval of the judges in Sharman v. Evans (see per Gibbs and Stephen JJ. at p.68, and per Murphy J. at p.86). Connor J. dealt with

the question of less of earning capacity in this way:

"Using 6§ and 7% interest tables and taking ressonabiy comperable wages it was not dispated that the lump sum figure for his loas is in the order of $100,000. This I think is a ressonsble starting point from which te mahe any appropriate deductions.

Tha evidence is that the plaintiff's expect- ation of tife as from the date of hearing, when he was 25, is 30 to 35 years. I have calculated his future economic loss at being 40 years from the date of hearing. On this footing there are notionally 5 to 10 years compensation @uring which the plaintiff would not have to port himself. Allowance must be made for this and for the ordinary travell- dng end other expenses associated with work.

I propose therefore to consider a figure of $95,006 as appropriate for this head of damages."

Later in the judgment, in the itemized list of heads of damages to which we have already referred, he ssid

"Future ecanomic loss $100,000 reduced for lost years etc. te $95,000."

Counsel for the appellant contended that this showed that the learned trial fudge misapprehended the law, and made both deductions omly in respect of "the lost years", whereas he should have made the

first one (for expenses of earning his income) for the whole of his

ne No.

nae ile MK ped eds She amas

-6-

ae

pre-accident edrning-life expectancy. If he had made both deductions correctly, it was contended, he must have reduced the $100,000 by an amount greater than $5,000. Counsel for the appellants referred us to the evidence at the trial which showed that the respondent would have expected, but for the accident, to drive himself in his own motor car about 10 miles (16 kilometres) a day to and from work, and that a cqeuplete set of mechanic's tools, which he needed for his work, cost about $800, and that these tools would have had to be replaced from

time to time. Cowasel did not refer us to some evidence which was, in fact, before the tearned trial judge, as to the overall cost of maintain- ing and rupmming a motor vehicle, expressed in cents per kilometre. There wes apparently nv esther evidence of the respondent's possible costs of earning income. Counsel did not, in submissions to this Court, make any svithmetical calculations based on this evidence, in support of his sub- mission that $5,066 was too small a deduction. Some such arithmetical calculation is pessible. <A calculation of motor vehicle costs, at 10.3 cents a kilometre (given in evidence) for 16 kilometres a day for 235 days a year, preduces an annual figure of about $385; let there be added to this $50 for replacement of tools, making an annual cost of $435.

The present values of an annuity of $435 for 30 years at 6% is about $6,000. To this figure of $6,000 (it might be said in development of counsel's submission) some figure (whatever it may be) must be added to represent the cost of the respondent's maintenance during the "lost years". Can it be seid, therefore, that two facts in combination - (a) the fact that the learned judge deducted only $5,000 from his starting figure ef $100,008, and (b) the fact that he expressed himself as he

cody tt ony ' et.

Ya

ar"

* als

3%,

has

did in his reasons for judgment, -should lead us to conclude that he made an error of law, in that he failed to make allowance for the costs which the plaintiff would incur in earning the income which he might have earned during the earning-life expectancy of which the accident

deprived him? i

We do not find it possible to come to this conclusion. His Honowur's repeated references to Sharman v. Evans make it extremely difficult to believe that he overlooked a principle which is so clearly expressed there by Gibbs and Stephen JJ. (at pp.68-69 and p.76), and one , moreover, which he explicitly recognized in his calculation of damages fer the respondent's loss of earning capacity between the time of the accident and the time of trial. We cannot say that the learned judge made the error of principle which was suggested, and we are thus left with the question whether, though he applied the correct principles, he arrived at a figure ($95,000) which was clearly excessive as a figure for the plaintiff's loss of future earning capacity. The question is equivalent to asking whether a reasonable jury, properly directed on the evidence, could have reached that result. In our opinion the answer

is yes, and for that reason we reject the appellants' submissions on

this point.

The next ground of attack on the judgment was on the allowance for the so called "contingencies", or vicissitudes, in relation to damages for future loss of earning capacity. It was argued for the

appelients that, in principle, the correct approach is to assume that

there would have been some contingencies adverse to the plaintiff which would have reduced the value of his earning capacity, leaving the onus on the plaintiff to satisfy the Court that there were countervailing prospects wrich might either have neutralized the effect of the adverse contingencies, or, possibly, gone further, and justified a larger

figure for loss of earning capacity than that based upon his wage or salary at the time of the accident. The ground on which counsel attack- ed the learned judge's approach to the problem was that he had no evidence en which he cowld have come to the conclusion that certain favourable contingencies offset what he called "the usual unfavourable

contingencies". These favourable contingencies were described by His

Honour as follows: "I think that if he had remained in employment he may well have become a leading hand or a fovemen in his late thirties or early forties. I think also it was quite a reasonable possibility that, with his keen interest in motor vehicles, he

and his brother may well have prospered if they had ventured into business for themselves."

We are clearly of opinion that there was evidence on which His Honowr could properly have assessed the vicissitudes of the respondent's possible future life in the manner in which he did. Counsel for the sppeliant further complained that there was no evidence relating to the smownt of the financial rewards which these favourable con- tingencies might have brought to the respondent. This argument seemed to assume beth that the onus is on a plaintiff to establish, on the balsnce of probabilities, that there are any favourable contingencies

to offset the assumed unfavourable contingencies, and secondly, that a

-9-

plaintiff also has the onus of establishing the monetary value of such contingencies, in the same manner in which he has the onus of establish- ing the financial rewards which he would have reaped had he been able to enter upen an occupation from which the accident has precluded him. In our opinion, this contention of counsel was incorrect in both respects. In the first place, it is not the law, in our opinion, thet unfavourable contingencies are always to be assumed, and that the plaintiff has the onus of establishing that there are countervailing favourable contingencies. In our opinion, in each particular case, the question ts one for the trial judge or jury; on all the evidence, does 3t appear that the calculation of the plaintiff's loss of earning capacity, based on his wages at the time of the accident, should be increased for favourable contingencies, decreased for unfavourable contingencies, or left unchanged for the combination of both? Secondly, the matter is not one for calculation, but for the exercise of a broad general discretion. The matter is quite otherwise, of course, if the plaintiff elleges that the accident has deprived him of the capacity to earn st a higher rate (or perhaps, of the capacity to earn at all). In such a case it is well settled that the plaintiff must adduce evidence of the financial rewards which he might have enjoyed; but that is not the point with which we are now concerned. We see no reason to criticize

the judgment of the learned trial judge in this respect.

The next matter of which the appellant complained was the allowance of $80,000 for the employment of an assistant to the plaintiff.

There was wuch evidence sbout the respondent's physical and mental needs,

weak

' vot 18M Ra Hey cate ie! hog tts Sop !

-10-

as eer

brought about By the eccident, and about the best ways of satisfying them. At the time of the trial the respondent was living at home,

and his physical needs, which are extremely exacting, were attended

to by his father, mother, and brother. If this regime could last in- definitely it would be ideal for the respondent, subject only to the necessity for him to go to hospital for specific observation and treat- ment about once a year. But for various reasons the time will come quite sven when nowe of these persons will be available to assist him. The contention aade for the respondent was that when that time comes

he wil) require a household of his own with a staff of full-time assistants. There was sample avidence to show that such a life would

be highly desirebie for the respondent; far better than life in hospital or similar institution. It sppeared that the wages for such a full-time . stafێ would require an aklowance of damages not far short of half a million dollers. Om the other hand, it was argued at the trial for the appellants that they should be liable only for the respondent's costs

of being a life-long patient in an appropriate institution. This figure was senething of the order of $150,000. The learned trial judge eventweily decided that the appropriate regime for the plaintiff would

be that he should be a permanent resident in an institution but have freedem to move ebout in his own motor vehicle in the way that a normal

person dees. Me cannot use public transport; he would therefore need

the essistance of @ paid attendant, not only to drive the vehicle (which | the plaintiff will never be able to do) but to assist him ingetting in and out of it end in moving about in a wheel chair. The institution

would supply s1] these needs which for a normal person are supplied as

a matter of houseketd routine, and in addition those special physical

+ n

Tf ge

-]]-

needs which the respondent's invalid state imposes. The only avail- able fimstitution in the Territory is a hospital called "Allambee" which for the respondent has the very great disadvantage that it is essentially a geriatric institution. The medical evidence was that for the respondent to be permanently an inmate of such an institution, without his own independent means of moving away from it at such times as he wished to do, would have a harmful effect on him, and that a

degree of independence of movement and of intercourse with people other

than his fellew-inmates was necessary for the maintenance of his physical

and mental health. (In this respect the evidence was different from the evidence in Sharman v. Evans.) The evidence also suggested that some form of training in occupationsi skills might be possible for him, and would be beneficial; such training would require his movement in and out of hospital. The prospects of such training going very far were clearly poor, and the learned judge clearly rejected the possibility of the respondent's ever being able to exploit any such skill for reward. But that did not throw doubt on the view that the mere ability to move about in the world, outside the walls of an institution, would be beneficial to the respondent and that inability to do so would be

harmful to him.

There was, therefore, in our opinion, ample evidence on which the lesrned trial judge could come to the conclusion, as he did, that the respondent's damages in this respect should be based on his being a permanent resident of Allambee, with freedom to move out of it for

social and recreationsl purposes, as he saw fit, and that to have this

-12-

freedom he would require a paid assistant. There was evidence about the cost of the wages of such an assistant, and there was evidence on which the learned judge could have found, as he did, that such calculation of wages should be based on the employment of such an assistant for not less than 40 hours each week. 'In our opinion there is no ground for upsetting the learned judge's findings and decisions in this respect. The figure of $80,000 which he allowed is in our opinion justified, and is not invalidated by the fact that the regime which he adumbrated was not put, exactly in that form, by counsel for the plaintiff at the trial.

Finally, en attack was made on the amount allowed by the learned trial judge for non-economic loss, i.e. pain and suffering and loss of the amenities of life. In respect of this, the learned judge allowed $75,000. It was contended by counsel for the appellant that this sum was manifestly too great. Reference was made to the already cited case of Sharman v. Evans, and to the joint judgment of Gibbs and Stephen JJ. in that case. Their Honours in that case were able to show, by examining several separate amounts which had been less precisely fixed by the trial judge than those which have been fixed in the case Before us, that of the total amount awarded by the trial judge, the sum of $80,000 must have represented pain and suffering and the loss of amenities. What their Honours said was

"Pain and suffering and loss of the amenities of life is a head of damages which is peculiarly difficult to assess, but when full compensation has been determined in respect of all other heads of damages, it appears to us that an additional sum of

$80,006 exceeds what could properly be awarded under this last head."

B fom tks a MB OE eg age

-13-

We respectfully adopt the epproach to this matter taken by their Honours, but on the facts before us we come to a different conclusion. We accept, with respect, that the right approach is to ask, after all the other calculations and assessments have been made, what should be the smount for pain, suffering, and loss of amenjties of life; that

is to say, to essess the appropriate compensation, under this head,

for a plaintiff for whom all other proper provision has been made. We do not, of course, regard what their Honours said about the amount of $80,000 as laying down any law; every case must depend on its own facts,

especially in such a matter as this.

Before we embark on an analysis of the damages, as reduced by their Honours, awarded to the plaintiff in Sharman v. Evans, with a view to e comparison with the facts of this case, we make the perhaps unnecessary observation that such an exercise can be no more than a tentative guide. In Sharman v. Evans their Honours reduced the trial judge's assessment of general damages ,$275,000, to $250,000. Their assessment of the damages apart from damages for pain and suffering,

was in detail as follows

Hospital and other care $128,000 Transportation 20,000 Loss of expectation of life 2,000 Loss of earning capacity (maximum) 45,000

$195,000

It is apparent, by the application of a process similar to that which their Honours applied to the trial judge's assessment, that $55,000 represents their assessment of damages for pain and suffering and

loss of amenities.

' wpa =e,

-14-

The respondent in Sharman v. Evans had somewhat more serious disabilities than the respondent in this appeal, as appears from the summaries of the trial judge (quoted by Gibbs and Stephen JJ. at p.63 ef the report), and of Murphy J. at pp.81-83. In particular, that respondent had practically lost the power of speech, which does not apply to this respondent. The estimated life expectancies of the two

persons were much the same.

Sharman vy. Evans was decided by the trial judge early in 1974, and between that time and December 1977, the date of the judgment under eppeal, it is notorious that there has been a fall in the value of money. Evidence was given in the case before us that in the first quarter of 1974 the average weekly earnings "per employed male unit" in the Australian Capital Territory, seasonally adjusted, were $150; for the first quarter of 1977 (later figures were not in evidence) they were $240. Such figures can do no more than provide a very rough

indication (again by virtue of permissible judicial notice of what is

notorious) of the extent of inflation. Let it be assumed that the amount

of $75,000 awarded in the case before us has to be reduced in the proportion of 240:150 to be compared with an award made in early 1974. The result is $46,875. Allowing for the more serious disabilities of the plaintiff in Sharman v. Evans, this does not seem an unreasonable figure by comparison with the notional figure of $55,000 which can be derived

from the reasoning of Gibbs and Stephen JJ. in that case.

In the last resort, of course, (as Gibbs and Stephen JJ.

implied in their joint judgment) the assessment of damages under this

ee heer ae

-15-

head must be felt to be reasonable, just,and proper in all the circumstances of the particular case. It is our feeling that the figure of $75,000 in the case before us cannot be said to be unreason- able, unjust, or improper. The comparison we have made with Sharman v.

Evans does not disturb that feeling.

In the result, therefore, we cannot say that there was any error in the judgment under appeal, and the appeal must be dismissed

with costs.

VY eee - ' wt

+s ,