MOUSA v MARSH [2001] NSWCA 317

New South Wales Court of Appeal

CITATION : MOUSA v MARSH [2001] NSWCA 317 FILE NUMBER(S) : CA 40836/00 HEARING DATE(S) : 10 September 2001 JUDGMENT DATE : 28 September 2001

PARTIES : Edward Mousa - Appellant Craig Scott Marsh - Respondent JUDGMENT OF : Sheller JA at 1; Powell JA at 37; Heydon JA at 38

LOWER COURT JURISDICTION : District Court LOWER COURT 3483/99 FILE NUMBER(S) : LOWER COURT Herron DCJ JUDICIAL OFFICER :

COUNSEL : J D Hislop QC/B G Smith - Appellant B Donovan QC/R McGloghry - Respondent SOLICITORS : W R Harvey & Associates - Appellant Eugene Lepore & Associates - Respondent CATCHWORDS : NEGLIGENCE - motor vehicle accident - relative liability ofparties where one party turns right and hits other party as they pass stationary cars on their left side - appropriate discounts LEGISLATION CITED : Motor Traffic Regulations 1935 SupremeCourt Rules British Fame (Owners) v Macgregor (Owners) [1943] AC 197 Podrebersek v Australian Iron and Steel Pty Limited (1985) 59 ALJR 492 Wynbergen v Hoyts Corporation Pty Limited (1997) 72 ALJR 65 CASES CITED: Housing Commission of NSW v Tatmar Pastoral Co Pty Limited (1983) 3 NSWLR 378 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 Fightvision Pty Ltd v Onisforou (1999) 47 NSWLR 473 DECISION : Appeal dismissed with costs.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40836/00 DC 3483/99 SHELLER JA POWELL JA HEYDON JA

Friday, 28 September 2001 MOUSA v MARSH

The respondent commenced proceedings to recover damages in negligence for injuries suffered in a motor vehicle accident. The accident occurred as the appellant was turning right from the western side of the road. The traffic was banked up on the eastern side of the road, and the appellant planned to proceed through a gap in the line of cars. The respondent, driving in the eastern lane, passed the stationary cars by travelling to their left, and the two vehicles collided. The trial Judge found the appellant to have been negligent. In particular, he found that the appellant had been in breach of Regulation 71(1)(b) of the Motor Traffic Regulations 1935, which provided that a person must not make a right turn until it is safe to do so. The trial Judge found the contributory negligence of the respondent to be ten per cent. He noted that the respondent might have been said to be in breach of Regulation 68. which provides that a vehicle may only pass other vehicles on their left side if those vehicles are "travelling along a traffic lane on his right hand side."

Held : per Sheller JA, Powell JA and Heydon JA agreeing:

1. The trial Judge's conclusion about the relative liability of the appellant and the respondent was entirely reasonable. The eastern side of the road was sufficiently wide for a car to pass stationery traffic, and a careful driver should have been aware of the possibility that a car would be passing in this way. 2. It was open to the trial Judge to conclude that, as a result of the accident, in particular its effect in leaving the respondent unable to control the effects of his schizophrenia, the respondent would remain unemployable. 3. Although the trial Judge's reasoning process in relation to determining discounts on damages is not clear, these discounts were within an appropriate range. ORDERS

Appeal dismissed with costs.

*******

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40836/00 DC 3483/99 SHELLER JA POWELL JA HEYDON JA

Friday, 28 September 2001 MOUSA v MARSH Judgment 1 Sheller JA: On 16 October 1997 Craig Scott Marsh suffered injuries in a motor vehicle accident. By a statement of claim filed on 1 December 1998 he began proceedings in the District Court to recover damages in negligence from Edward Mousa, the driver of the other vehicle. The accident occurred shortly after 6am when the car the plaintiff was driving in an easterly direction on Canley Vale Road collided with a car driven by the defendant. The defendant had been driving in a westerly direction on Canley Vale Road and was, at the time of collision, turning right into Allenby Street. 2 The proceedings came before his Honour Judge Herron QC who, on 25 August 2000, delivered an ex tempore judgment in which he entered a verdict and judgment for the plaintiff in $714,592. This amount was reached after making a 10 per cent reduction to take account of his Honour's conclusion that the plaintiff had been guilty of contributory negligence. 3 The defendant appealed from this decision. In the amended notice of appeal he relied on five grounds which were as follows: "His Honour erred: 1. In his apportionment for contributory negligence. 2. In his assessment of damages such assessment being excessive. 3. In failing to take any, or any adequate account, of the impact of the plaintiff's schizophrenic condition irrespective of the subject motor vehicle accident. 4. In concluding that future treatment would not avail the plaintiff and/or making no allowance for the possibility it may do so. 5. In failing to give adequate reasons." 4 As the trial Judge found, the accident occurred as follows. Allenby Street forms a T intersection with Canley Vale Road and runs to the north. Approaching the intersection the plaintiff had on his right a line of traffic banked back from the intersection and going in the same direction as he was but stationary. The plaintiff was travelling between this stationary line of traffic and the northern kerb of Canley Vale Road. Canley Vale Road was entirely sealed. The carriageway was more than 13 metres wide, room enough for four lanes of traffic. The two west bound lanes were marked. No lanes for the east bound traffic were marked along the part of the road that the plaintiff was traversing. Two east bound lanes were marked from about 25 metres east of Allenby Street to control traffic approaching the major intersection of Canley Vale Road and the Cumberland Highway. We were told that the weather conditions were fine and the road was dry. It was daylight. 5 The defendant began to turn right into Allenby Street. As he did so the plaintiff emerged into the intersection and the cars collided. The defendant told the police that the driver of one of the stationary cars waved him through. The plaintiff's car came through on the inside. The defendant hit it on the driver's side, it appears from the photographs near the off-front headlight, and put the plaintiff's car off its course. It ran into a pole near the north-eastern corner of Canley Vale Road and Allenby Street. Judge Herron accepted that the plaintiff remembered nothing of the accident. 6 By failing to make a right hand turn at an intersection with safety the defendant was clearly in breach of Regulation 71(1)(b) of the Motor Traffic Regulations 1935. Relevantly that sub-regulation provided: "Where the driver of a motor vehicle is about to turn it to his right at an intersection he shall:' …… (b) in every case, if when he enters the intersection there is upon or near it any vehicle ….. in the charge of any person which has approached from the opposite direction and with which his vehicle if it so turned might collide, cause his vehicle to stand until it may turn with safety."

7 Unsurprisingly Judge Herron found the defendant to have been negligent and that finding has not been challenged on appeal. 8 About contributory negligence Judge Herron said as follows: "The plaintiff might have been said to have been in breach of regulation 68 which requires a vehicle to pass other vehicles on their offside as it were. I do not think that really it could be said that any breach of regulation 68 caused this accident, but I do think that the plaintiff lacked care for his own safety in proceeding along what undoubtedly were stopped vehicles and not taking care that there were no vehicles making a right hand turn into Allenby Street. On the other hand I think that the defendant's responsibility, having regard to the terms of regulation 71, is much greater than that of the plaintiff and I think it would be equitable in all the circumstances to assess the plaintiff's fault in the matter as being ten per cent." 9 Having discussed and put aside the possibility that the plaintiff's driving might have been affected by the ingestion of drugs, Judge Herron went on: "I think that the plaintiff was guilty of contributory negligence to the degree to which I have mentioned, but I think that that was on the basis that he failed to keep a proper lookout for vehicles which might be coming from the direction in which Mr Mousa's vehicle was coming and failed to adjust his speed at the head of the stationary line of cars so as to avoid the accident. As I have already said and at the risk of repeating myself, I think that the plaintiff's fault in the matter was much less, much much less than that of the defendant and I have already announced the percentage figure." 10 Regulation 68 which is headed "Passing and overtaking" provided, relevantly, as follows: "(1) The driver of a motor vehicle upon a public street …… (b) shall, except as provided in clause 2 and subject to clause 3, when overtaking a ……vehicle, pass on the right hand side of the ……vehicle and not pull over to the left hand side until his vehicle is clear of the …..vehicle ….. (2) Subject to clause (3), the driver of a motor vehicle may, when overtaking a …..vehicle, pass on the left hand side of the ….vehicle if the …..vehicle - (b) is travelling along a traffic lane on his right hand side." 11 Regulation 2 provides that unless the context or subject matter otherwise indicates "Traffic Lane" means "a laneway for the passage of vehicles marked along the carriageway". The point was that although there was more than six metres of sealed carriageway to the north of the centre line on Canley Vale Road and therefore ample room for two lines of traffic to proceed beside each other in an easterly direction, the plaintiff was acting illegally in using the left or northern side of the road to overtake the stationary line of traffic. To my mind there must be a doubt whether this regulation would be breached by overtaking the stationary line of traffic in what was clearly designed and intended to be used as a traffic lane, although not so marked. However, substantially on the basis that there had been a breach of the regulation, Mr Hislop QC, who appeared for the defendant appellant, submitted that the plaintiff was more to blame for the accident than the defendant and that a proper assessment of the degree of contributory negligence would have put the percentage well above ten. There was also evidence from an expert, based on the condition of the plaintiff's vehicle after it collided with the pole, that it had been travelling at a speed of between 50 and 65 kilometres an hour. The trial Judge made no mention of this. 12 It is well established that since a court's apportionment of the degree of liability due to the plaintiff's contributory negligence is a question not of principle or of positive findings of fact or law but of proportion, of balance and relative emphasis and of weighing different considerations all of which involve an individual choice or discretion as to which there may well be differences of opinion by different minds (see British Fame (Owners) v Macgregor (Owners) [1943] AC 197 at 201), such a finding, if made by a judge, is not lightly reviewed. I would have no doubt that a judge of the experience of Judge Herron would have had well in mind what was said by the High Court in Podrebersek v Australian Iron and Steel Pty Limited (1985) 59 ALJR 492 at 494. "The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man ……and of the relative importance of the acts of the parties in causing the damage…. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance."

See also Wynbergen v Hoyts Corporation Pty Limited (1997) 72 ALJR 65 at 68. 13 The plaintiff had right of way at the intersection. The defendant was turning across the on-coming traffic approaching the intersection in a road where it was entirely safe for two lanes to proceed, one beside the other. There was no reason for the plaintiff to believe that he could not safely proceed across the intersection to continue on along Canley Vale Road, though I accept the Judge's view that greater caution was called for in the situation that the defendant's car was poised to turn right. Regulation 68 was said to mean that because there was no marking to divide the two lanes on the left of the centre line the plaintiff was illegally overtaking. That in no way reduced the defendant's culpability. It could not seriously be suggested that as a careful driver he should not have been alive to the probability that cars would be travelling in the lane the plaintiff was travelling in. It has been said that the stationary traffic may have blocked his view. But the events demonstrated that the defendant failed to keep a proper lookout and proceeded to make his right hand turn either when he had not looked to see if it was safe to do so or, alternatively, when he was unable to see whether there was oncoming traffic in the northern lane of Canley Vale Road. In evidence the defendant said that he approached hesitantly because he could not see "like I couldn't see in case there's someone on the inside which we know ended up happening and I was approaching really really slowly and because it is just like having a blindfold, you can't just put your foot down because he said go…". I entirely agree with the trial Judge that though the plaintiff was guilty of contributory negligence his culpability was much much less than that of the defendant. I am not satisfied that any reason has been shown for disturbing the percentage reduction that Judge Herron chose. 14 Before coming to the grounds of appeal which concern the quantification of damages, it is appropriate to turn to ground 5. As is the practice, Judge Herron's reasons for judgment were set out in the red appeal book. The trial Judge said: 'The plaintiff was taken to the Liverpool Hospital. The main claim as I see it is that this accident resulted in his having brain damage and at one stage as I understand if it was suggested that the accident had caused a condition of schizophrenia. I do not think that on the probabilities the accident caused schizophrenia, but for the reasons which I shall give I have no doubt that before the accident the plaintiff was well ordered in the sense that he had fairly regular employment and after this accident he has been rendered unemployable by reason of his schizophrenia which was under control before the accident. (I shall come to the explanation about this given by Doctor Milton, the psychiatrist). The probabilities are also that he did suffer some brain damage which has resulted in some loss of cognitive powers, but it seems to me that the main injury that this man has suffered is the failure as a result of the accident in effect to control this incredible and tragic disease which he has. As I say he was taken to the Liverpool Hospital. Doctor Scougle, for example, who saw him much later sums up the problems which he had and in a report dated 4 May 1999 he lists the injuries which the plaintiff had and which were in effect discovered, if I can use that expression, at the Liverpool Hospital. He had (1), a head injury with loss of consciousness and intracranial brain damage and scalp lacerations requiring suturing; (2), he had facial lacerations including one on his lower lip and chin, his two front upper teeth were knocked out and he had facial bruising and abrasions; (3), fracture of his distal left radius with displacement of the radioulna joint, suspension marks, that is something I have just left out, requiring open reduction and internal fixation of the radius on the day of his admission; (4), extensive generalised bruising and abrasions, particularly to his knees, to his elbows and his ankles and chest and abdominal bruising from the restraining effect of the seatbelt; (5), an intra-abdominal injury requiring laparotomy, a soft tissue injury to his neck, a soft tissue injury to his low back, bruising to the region of the first rib on the right side not showing a fracture on x-ray, but presenting as an area of increased uptake on bone scan probable due to the restraining effect of the seatbelt. As Doctor Scougle summarises the matter, from a history of course which had obtained from the hospital records and elsewhere, it is related that the plaintiff had a general anaesthetic and also that he had this laparotomy which was spoken of by other doctors including Doctor Griffith and the position was that when he saw Doctor Scougle, that is in May 1999 he was complaining of loss of memory, having headaches and having difficulty with concentration. In addition he had constant ringing in both ears, the right more than the left. His mother told the doctor that he did not recall recent conversations, but he was fairly slow, but meticulous, in his thinking processes. He also was complaining of pain felt in the back of the neck radiating to the back of his head and I think the matter could be summed up by saying that he has general aches and pains if I can use that expression and he was able, with some difficulty, to give me in the evidence details of this. Doctor Scougle summed the matter up in May 1999 (and the position has not been changed) by saying that he was unfit for his pre-injury work, partly from the point of view of his orthopaedic injuries and partly from some intellectual impairment that may be present. I think that that was putting the matter at its lowest so far as intellectual impairment is concerned because I really think that the probabilities are that that is the plaintiff's main problem, although he has orthopaedic problems in addition to that, this problem will prevent him from following any work and I think it would appear to me that despite the fact that there was evidence to the effect that there is treatment available for this condition, the situation will be that he will remain, from a practical point of view, unemployable for the rest of his life." 15 A little later Judge Herron repeated that the plaintiff's main claim was that he was suffering from schizophrenia which he had suffered prior to the accident, but which was now preventing him from pursuing any activity. The trial Judge then referred to the evidence of various people including the plaintiff's parents and several doctors. In broad terms it could be said that the doctors disagreed about the existence or effect of brain damage suffered as a result of the accident. There was also disagreement about the nature of the plaintiff's pre-accident schizophrenic condition and the extent to which this could have been or should then have been treated with drugs. Judge Herron said: "….it seems to me that I should accept and I do accept the opinion that in fact this plaintiff had a head injury, if not as bad as that referred to by Doctor Canaris, nevertheless of significant severity. Doctor Canaris incidentally in evidence spoke about the plaintiff being involved in an inexorable downhill slide so far as his condition was concerned." 16 The reasons for judgment continued: "Doctor Milton gave evidence on behalf of the defendant and he was of the view that the plaintiff had a chronic psychosis and on reading his reports one would have got the impression that what he was saying was much the same as was being said by Doctor Smith. As I understand Doctor Smith's evidence that really that this was a case of a man who had had schizophrenia for many years and that really it could not be said that the accident had had much to do with it. That is the impression which I feel emerges from the reports of Doctor Milton and in particular that of 13 December 1999. He said in that report, among other things, 'Mr Marsh suffers from schizophrenia. By his own account he has always been of a quiet and retiring nature and has had a marked interest in religion and philosophy, being involved for a time with the Church of Scientology.' He remained at home until he was aged 30, he had few friends and incidentally he did leave his parents' home and boarded with Mrs Pacic. She gave evidence that the plaintiff in effect lived a fairly normal life, if I can use that expression, whilst he was boarding with her and indeed he was going to work whilst he was with her and certainly did not exhibit the signs which she saw after the accident which I think might be summed up as signs bordering on a person being confused. Getting back to Doctor Milton's views. In his report of 13 December 1999, he said 'In summary Mr Marsh was involved in a serious motor vehicle accident on 16 October 1997. His account of the accident was that he was trapped in the car and the vehicle caught fire, but that is not in accord with other information available to me. He claims to have suffered a severe brain injury in the accident. That is not in accordance with his response to Narcan, nor with observations of his level of consciousness in hospital.' To digress I have already stated that in my view in effect on the probabilities the MRI scans do show that this man suffered a significant head injury in the accident. Doctor Milton went on to speak about the two major operations which the plaintiff had had on the first day of his being admitted to hospital. 'It is probable his level of consciousness was altered during that time by medication given for pain relief or to sedate him to make management easier', but he went on to say 'His history of being quiet and retiring and staying with his parents until he was 30, of involvement with the Church of Scientology, his longstanding interest in religion and philosophy, freemasonry and other areas, as well as his bizarre elaborate tattoos acquired recently are consistent with the gradual development of a severe schizophrenic illness. The history and his parents' account of him prior to the accident are consistent with that illness being present before the accident, is unlikely that the accident had any exacerbating effect on the schizophrenic illness." 17 A little later in the reasons for judgment, after referring to a statement by Doctor Milton of his opinion that "a serious mental illness existed for some years prior to the accident", his Honour quoted Doctor Milton's oral evidence: "The accident had an undeniable effect on him. Once you interrupt the pattern of work you increase dependency and of course that is not good development. …… you interrupt the ability of the person to look after himself and you interrupt his independence." 18 Judge Herron continued: "….it was put to the doctor and the doctor was obviously saying, much I think to the surprise of counsel, that he was not suggesting that this accident had not had a catastrophic effect upon the plaintiff, but indeed that had interrupted his routine which obviously [he] had maintained whilst he was able to work and that really he was in the situation at present where he really was unable to continue working." 19 Judge Herron said: "…I think that the fact is that the doctor was clearly of the view that whereas the plaintiff was able to order his life prior to the accident, that was not so afterwards and it seems to me that that may be the real explanation of the situation in which the plaintiff now finds himself and I accept that whether it is as a result of the brain damage or whether it is the result of the trauma of the accident itself, this man has a schizophrenic condition, albeit that it is of long standing which has now rendered him virtually unable to work." 20 Judge Herron continued a little later: "So I think to sum the matter up in this ex tempore judgment, the fact is that although the plaintiff suffered from schizophrenia and suffered it long before this accident, before the accident for some years he had been able to, despite his attendances at the St John of God Hospital and indeed the WHOS institution to engage in reasonably regular work, apart of course from the lengthy periods which he may have spent at the WHOS institution and that he was able to order his life. Doctor Milton I think it was, who spoke about people in this situation not only ordering their lives, but putting themselves in jobs where they may not have to come in contact with people as often as workers might and this of course seems to have been what the plaintiff himself did. It is of some significance on the nightshift which he was working immediately prior to this accident, the situation was, I would think, that he was working somewhat in isolation and I think that the evidence indicates that that was the sort of job which he sought and was sort of the organisation spoken of by Doctor Milton. So again at the risk of repeating myself it seems to me that this, the plaintiff's present parlous situation is in fact the direct result of this accident. It might be said of course that with a schizophrenic condition such as he had that this condition might have arisen at anytime and without negligence on the part of anyone, but the fact of the matter is I think that this is a classic case of the defendant having to take the plaintiff as it finds him and in the circumstances notwithstanding the suggestion that he might benefit from medication nevertheless I think the probabilities are that this plaintiff will remain indefinitely unemployable and in, at the risk again of repeating myself in what can only be described as the parlous condition which he in fact is in." 21 To enable the fifth ground of appeal to be understood it is necessary that I set out in full the last part of the reasons for judgment as they appear in the red appeal book. "It is interesting to observe that he was able to give evidence of his problems, but nevertheless as a layman I think one could detect that there was some problem in relation to his reasoning powers and I think to use perhaps a word mentioned by one or other of the many medical and other people who gave opinions in this matter, he had this 'very flat' presentation and it is for those reasons that I have assessed the damages which I have already announced [my emphasis] and subject to questions of interest and the Fox v Wood component of the matter and the superannuation component of the matter, I will leave the matter there. To make the matter clear, I assess damages in the sum of, without having regard to the Fox v Wood component and those other matters, at $764,159. In view of my finding of ten per cent contributory negligence that is to be reduced to $687,743. I have already announced this [my emphasis] and I would ask the parties if they would be kind enough to let me have those other information [sic]. Having heard counsel, I shall enter a judgment, verdict and judgment for the plaintiff in $714,592 and the defendant is to pay the plaintiff's costs including, for $41,000 which is the agreed amount charged by the Office of Protective Commissioner. Judgment moneys are to be paid into Court and thereafter to the Office of the Protective Commissioner to be dealt with under the relevant statute. I grant a stay of proceedings for twenty eight days upon the condition that the defendant files a Notice of Appeal to the Supreme Court and pays to the plaintiff's solicitor the sum of $357,296. The stay will remain in force until further order of the Supreme Court or by agreement of the parties." 22 The reasons for judgment in the red book had not already announced the damages and gave no indication of the break up of the $764,159 or the $714,592 or how those amounts were assessed. However, para 6 of the defendant's written submissions in the orange book was as follows: "6. The proceedings were heard by Herron DCJ. He found the appellant negligent and the respondent guilty of 10% contributory negligence. He assessed damages as follows: Out-of-pocket expenses $85,059.00 Future medical expenses $25,000.00 Past loss of wages 148 weeks @ $450 pw $66,000.00 Future loss of earning capacity $270,000.00 Past care $20,000.00 Future care by parents $20,000.00 Future care thereafter $100,000.00 Non-economic loss 65% of a most extreme case $177,500.00 $764,159.00

He then made certain adjustments to the calculations for contributory negligence Fox v Wood, superannuation and interest and ultimately entered judgment for the respondent for $714,592.00. 7. The [appellant] contends his Honour erred in his assessment of contributory negligence and that the damages awarded were excessive." 23 The reasons for judgment were given ex tempore on 25 August 2000. After the hearing of the appeal had begun, a two page transcript for 25 August 2000 was handed to the Court. This includes interchanges between the Judge and legal representatives before his Honour gave judgment as set out in the separate transcript in the red book. At the trial Mr Donovan QC appeared for the plaintiff and Mr McDonald for the defendant. On 25 August 2000 Ms Ross appeared for the plaintiff and Mr Harvey for the defendant. The transcript handed up, leaving out formal parts, was as follows: "HIS HONOUR: In this matter of Marsh I think it was because I couldn't read my own writing that I wasn't quite sure if there was any agreement about what the plaintiff's wages had been, but looking at the, I notice however that there is a note $470 net but when I look at the, this is this next matter. When I look at the income tax returns it's more like $450 and that's the figure that I was really working on. ROSS: Your honour we would be relying on the tax returns, it makes sense. HIS HONOUR: Well it's about that, it might be a bit less, a bit more. HARVEY: There was no formal agreement as to the rates, but the tax returns were handed up and that would be an appropriate figure from the tax return your Honour. HIS HONOUR: No but what I, I must confess I spoke to Mr McDonald because on the schedule of damages put before me there was $900 mentioned. Well that put me off, I said where's the $900 and I couldn't find it, that's the problem, but any rate, but there'll be some adjustments here too because for example there's a Fox and Wood component in this because there was workers' compensation. I don't know what that is. There's also superannuation which will have to be worked out in view of the figures which I will tell you in a moment and there's also this question of interest. So if any, I don't know, you'll have to work those out, I can't work them out, but I think – look I find a verdict for the plaintiff and for the reasons that I'll give at some length. The out of pocket expenses, and again I'm taking the letter which was sent to me, are $85,059 and I'll speak about this later. There was a submission put to me on behalf of the defendant that a lot of that shouldn't be allowed, but it just seems to me that it's been paid that includes some of the matters that haven't been paid, a small amount, $85,059. Again taking a broad approach to it, I've assessed future medical expenses at $25,000. I've assessed past loss of income and earning capacity as being 148 weeks by $450 at $66,600. Future loss of income earning capacity and again I'll give the reasons for it , [my emphasis] $270,000. Future medical expenses of $25,000. Past care $20,000. Future care on the basis that he be cared for by his parents $20,000 and thereafter $100,000 and the non economic loss I put at 65 per cent of the most extreme case and that gives $177,500. Now as I'm always wrong in my calculations, I seem to be, is that, would somebody help me with those, I've got $789,159, but there's something to come off there is there, $789,159 and I've got a figure, I think something has to come off that because $710,243. Help me will you about that. ROSS: Yes your Honour can I just double check those figures. The future medicals $25,000. HIS HONOUR: Wait I'll go through it again. Out of pockets $85,059, future medical expenses $25,000, past loss of income $66,600, future loss of income earning capacity $270,000, future medical expenses – that's what I've done, that's where I've gone wrong, I've already done that haven't I. I'm sorry about that. I've doubled up there. When I read my reasons I'd have been able to fix that, but past, so the other figures are right. Past care $20,000, future so far as he stays with his parents $20,000 and the future care after that $100,000 and non economic loss $177,500. ROSS: Your Honour I come to a total of $764,159. HIS HONOUR: Yeah well, $764,159. HARVEY: That's your Honour's original figure less the $25,000 that was included twice. HIS HONOUR: Yes I've added it up, I was right. HARVEY: You were. HIS HONOUR: Well I'm sometimes out, but then there's this superannuation problem and there's interest problem and then there's also Fox and Wood problem. He was – isn't there? ROSS: There is your Honour. HIS HONOUR: So just somebody at some stage, at some stage work that out for me and let me know will you." 24 There will be found in this transcript all the amounts set out in para 6 of the defendant's written submissions. Although Judge Herron said he would give the reasons for the amount assessed for future loss of income earning capacity, he did not do so. There were some interchanges about the accuracy of the calculations but no reasons given for the amounts chosen. Mr Donovan told us that if Judge Herron based his assessment of future economic loss on a net weekly wage of $450 for the period until the plaintiff attained the age 65 and applied the 5 per cent tables, as it seems probable Judge Herron did, the result would have been an amount of about $358,000. The amount awarded of $270,000 was a discount of 25 per cent. After the hearing of the appeal was complete, we were furnished with the plaintiff's schedule of damages handed to the Judge and referred to in the transcript of 25 August 2000. 25 While the break up of damages set out in the defendant's written submissions can be explained by the transcript the trial Judge has not exposed the reasoning process which led him to choose these amounts. 26 In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Limited (1983) 3 NSWLR 378 at 385 (affirmed by the Privy Council (1984) 58 ALJR 553), Mahoney JA said: "There is, in my opinion, an established course of decision in this State that, in certain circumstances, it is the duty of a judge to state his reasons for deciding as he does and that his failure to do so may constitute an error of law." 27 In Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 each member of this Court expressed views concerning the judicial duty to give reasons. At 279 McHugh JA pointed out that one of the purposes of giving of reasons for a judicial decision was that it enabled the parties to see the extent to which their arguments had been understood and accepted as well as the basis for the judge's decision. His Honour referred to Lord Macmillan's ex-curial remark that the main object of a reasoned judgment "is not only to do but to seem to do justice". 28 The grounds set out in the defendant's original notice of appeal with appointment contained four grounds as follows: "1. His Honour's decision was against the evidence and against the weight of the evidence. 2. His Honour misunderstood or misapplied the relevant test of contributory negligence when he assessed the Plaintiff's contributory negligence to be 10%. 3. His Honour was in error in failing to have adequate regard to the Plaintiff's condition prior to the incident when assessing the award for future economic loss and future care. 4. The appellant may seek to supplement these grounds when the transcript and the judgment of the learned trial Judge is made available." 29 Want of reasons is not mentioned. This suggests to me that during the course of submissions, which are not recorded in the transcript, possibilities were discussed and the trial Judge indicated the amounts he thought were appropriate and why. The defendant did not file his submissions on the appeal within time. The plaintiff filed written submissions on the appeal at a time when neither the defendant's written submissions nor the transcript were available. Included in the plaintiff's written submissions were the following: "The details of the heads of damage are in the trial transcript which is not yet available. According to our notes which were taken at the time of the hearing his Honour allowed future economic loss at $270,000. The details of how this was made up are not presently available. However, we understand that this was based on the plaintiff's past taxable income. The plaintiff in fact in his Schedule of Damages claimed $338,555. This allowed for a projection forward. If we are correct in our note about the calculation of the future wage loss then his Honour did take the plaintiff's actual prior earnings as a basis for the future, and had a proper and sufficient regard to the plaintiff's condition prior to the incident in so doing. The future care with parents was allowed at $20,000 and the future care without parents was allowed at $100,000. The defendant claims that there was a failure by his Honour to take into account the plaintiff's condition prior to the incident. The fact is that prior to the incident the plaintiff did not need any care. He was an appropriately functioning human being able to look after himself. His Honour needed to do nothing more than consider that situation unless there was evidence which would show that the plaintiff would deteriorate from that self-sufficient condition if the accident had not happened. There was some speculative evidence from some of the Defendant's experts that he may have had an underlying condition which caused him to be unemployable, and by implication need care. At Red Book 17 however his Honour rejected this evidence and said that he had no doubt the plaintiff was well ordered before the accident in the sense that he had fairly regular employment and after the accident he was rendered unemployable by reason of his schizophrenia which was under control before the accident. Red Book 17P to V. …… The important thing to his Honour was that the plaintiff was functioning before the event, but not able to function after the event. The amount for future care claimed for the plaintiff was ten hours per week at $25 per hour, a total amount into the future after 33% for vicissitudes of $146,125. His Honour took the discount further and allowed only $100,000. The figure of $100,000 was well within the range that his Honour was entitled to award taking into account both a 33% discount and a further $45,000 discount from the full value to which the plaintiff would have been entitled. The full value for care would have been $146,125 plus $73,000 a total of $219,125."

30 The submissions on grounds of appeal 2, 3 and 4 were directed to the assessments for future economic loss, future medical expenses, future domestic assistance, future superannuation and non-economic loss. The defendant submitted that the amount for non-economic loss should be reduced to 33 per cent of a most extreme case and the damages under the other heads by 50 per cent. The defendant submitted that the trial Judge failed to take account or sufficiently to take account of the probability of the occurrence of future or hypothetical events such as the probability that even without the accident the plaintiff might at some time before the retirement age have found himself unable to work either for periods of time or completely; Malec v J C Hutton Pty Ltd (1990) 169 CLR 638. Similarly it was submitted that the trial Judge made no appropriate allowance for the result of future medical treatment on the plaintiff's ability to work. However, as this Court said in Fightvision Pty Ltd v Onisforou (1999) 47 NSWLR 473 at 505 the customary course of taking a hypothetical exercise of an uninjured earning capacity until retirement, then making an allowance for vicissitudes, is a way of arriving at the degree of probability of the future hypothetical event of the exercise of that earning capacity. Criticism was directed to Judge Herron's statement "in the circumstances notwithstanding the suggestion that he might benefit from medication nevertheless I think the probabilities are that this plaintiff will remain indefinitely unemployable and in, at the risk again of repeating myself in what can only be described as the parlous condition which he in fact is in". In Fightvision at 506 the Court observed: "Although there should not be a finding of past or future hypothetical events on the balance of probabilities leading to those events being treated as certain, the language of 'more probable than not' may be used in that connection consistently with the principle in Malec v Hutton. It may be a way of expressing an allowance or part of the allowance for imponderables or chances." 31 Judge Herron held that the accident had had a catastrophic effect upon the plaintiff, had interrupted his routine which obviously he had maintained while he was able to work and that he was in the situation "at present" where he was unable to continue working. By reference to Doctor Milton's evidence, the Judge accepted that whether it was as the result of the brain damage or whether it was the result of the trauma of the accident itself albeit that the schizophrenic condition was of long standing, it was the accident that rendered him "virtually" unable to work. He regarded the plaintiff's present parlous situation as the direct result of the accident. 32 In the plaintiff's schedule of damages handed to Judge Herron the plaintiff claimed as follows: · For future economic loss $500 net per week for 28 years, which using the factor of 706.60 gave a figure of $398,300 which after a 15 per cent discount of $59,745 produced an amount of $338,555. The amount awarded was $270,000. · For future medical expenses $39,095. The amount awarded was $25,000. · For future care by his parents $39,000 and thereafter $146,125. The amounts awarded were $20,000 and $100,000. · The amount for future superannuation was simply a percentage calculation of net income.

The figures awarded demonstrated discounts from the amounts claimed significantly beyond the conventional 15 per cent, in the case of future medical expenses 36 per cent, future care by parents nearly 50 per cent and future care thereafter over 30 per cent. As counsel had pointed out the amount for future economic loss had been discounted by about 25 per cent. 33 Judge Herron was alive to the submission that the plaintiff's future earning capacity would have been adversely affected by his health even if there had been no accident. However, his Honour found, and in my opinion it was well open to him to find, that before the accident the plaintiff had fairly regular employment and that the accident had made him unemployable, not only because of some loss of cognitive power but also because as a result of the trauma, he was left unable to control the effects of schizophrenia. To use the language of Doctor Canaris the plaintiff had become involved in an inexorable downhill slide in his condition. The trial Judge referred to the suggestion that the plaintiff might benefit from medication. Even so, he found, and it was open to him to find, that the probabilities were that the plaintiff would remain indefinitely unemployable. Consistently with his Honour's findings, which were open on the evidence, the chance of the plaintiff recovering to a point where he could work again, if it existed, was slight. There is no reason to suppose that in making the discounts he did, such an experienced judge would ignore the possibility that even without the accident the plaintiff's health may have deteriorated to a point where he was only able to work less or perhaps not at all before he achieved the age of 65. 34 For reasons I have already mentioned it is unsatisfactory that this Court on this appeal does not have the benefit of the trial Judge's reasoning process in fixing the discounts he clearly applied to the amounts for future loss he calculated. However, there is no basis for doubting that the need for such discounts was fully argued and the range of appropriate discounts put to the trial Judge. The defendant submitted that the discounts should have been greater. In my opinion, the discounts chosen were within an appropriate range and I am not persuaded that in respect of the damages intended to compensate for the future the defendant has demonstrated that, in the language of Pt 51 r23(1) of the Supreme Court Rules, some substantial wrong or miscarriage has been occasioned. 35 No matter of substance was advanced to support the suggestion that the award for non-economic loss was excessive. What Judge Herron described as the plaintiff's present parlous situation included not only the loss of control of the schizophrenia from which he had suffered but also very significant physical injuries and continuing orthopaedic problems.

Conclusion 36 In my opinion, the appeal should be dismissed with costs. 37 POWELL JA: I agree with Sheller JA. 38 HEYDON JA: I agree with Sheller JA. *******

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