Hanna v Hertz Australia Pty Limited [1999] NSWSC 235

New South Wales Supreme Court CITATION : Hanna v Hertz Australia Pty Limited [1999] NSWSC 235 revised - 31/08/99 CURRENT JURISDICTION : Supreme Court FILE NUMBER(S) : NR600074/90 HEARING DATE(S) : 22/03/99-23/03/99 JUDGMENT DATE : 25 March 1999

PARTIES : Robert Lyle Hanna v Hertz Australia Pty Limited JUDGMENT OF : at 1

COUNSEL : D. Wheelahan QC with G. Radburn (Plaintiff) P. Crittle (Defendant) SOLICITORS : Mitchell Playford & Radburn (Plaintiff) Carroll & O'Dea (Defendant) CATCHWORDS : Motor Accidents Act; Assessment of Damages; No particular point of principle DECISION : Damages Assessed

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MICHAEL GROVE J

LISMORE: Thursday 25 March 1999

NR600074/90 - ROBERT LYLE HANNA v HERTZ AUSTRALIA PTY LIMITED JUDGMENT 1 HIS HONOUR : This action is before the Court for assessment of damages only. It arises out of a motor vehicle accident which occurred on 4 July 1988. The Motor Accidents Act applies. 2 The plaintiff was at the time engaged in the course of his employment with what was then known as 'Telecom' and was riding as a passenger in a vehicle which came into collision with another, apparently coming in the opposite direction but crossing onto its incorrect side of the road. The driver of the Telecom vehicle was in fact a Mr Halliday, who gave evidence in these proceedings. He was also injured but apparently not as seriously as the plaintiff. 3 The plaintiff was born on 26 January 1952. So far as is relevant in his history, he has essentially been employed as a Technical Officer by Telecom throughout his life. 4 A number of his fellow employees and superiors were called to give evidence. His wife also gave testimony. Prior to the accident I am satisfied that the plaintiff was a talented young Technical Officer with good career prospects in the Telecom organisation. He was a man of outside interests. In particular, he had gained a flying licence and there is a history given to one doctor by the plaintiff that he was proceeding towards commercial rating with a possible view to entering that field. 5 No claim is made in respect of that interest and I mention it only to indicate that prior to the accident the plaintiff manifested wide, varied interests which required more than usual abilities. 6 This action has, as is obvious, been a long time in coming to hearing. There is no evidence before me concerning the reason for delay but I made an inquiry of counsel and was told that the plaintiff was reluctant to bring matters to finality, particularly as his employment future was a matter of some uncertainty. Given the evidence that I have seen, I find that understandable and reasonable. 7 The passage of nearly eleven years has inevitably resulted in the accumulation by both the representatives of the plaintiff and the defendant of a considerable volume of medical and psychological report. I do not propose take up time reciting what can be read in those reports. I would make some observations, however. 8 The bundles of material tendered by the respective parties contain many reports of psychological testing. Many medical practitioners who saw the plaintiff remarked upon his depressed presentation. That presentation seemed to get worse over the years. Regrettably, in the entirety of the accumulated material there is not a single report from a psychiatrist, with the exception of Dr Revai, with whom consultation was arranged by the defendant but for reasons which were explored in the evidence and are mentioned in Dr Revai's letter, did not come to completion. I do not think it is necessary to analyse the particular events of that intended consultation. It is noteworthy that counsel for the defendant, in the course of submission, said that he accepted that it was quite likely that the plaintiff really had no recollection of what his behaviour was on that occasion. 9 I turn therefore to the injuries sustained by the plaintiff. By far the most immediately obvious and serious injury was the total loss of his left eye. He has had difficulty in finding a satisfactory permanent prosthesis and it will appear that there will be a future routine of replacing at approximately two year intervals. The reason for this is, no doubt, that his facial structure was grossly disturbed by the traumatic incidents of the collision. The side of his face remains significantly out of ordinary structure. 10 In the years since, the plaintiff has noticed that using his remaining eye there is a permanent black spot which moves in accordance with his eye focus and from time to time there are what he describes as blanks in his vision. These are, in my view, disturbing phenomenon in the case of a monocular person as the plaintiff has, as a result of the injury, become. 11 The exact origin of the symptoms has been the subject of canvass in some of the medical reports. I am unable to determine the exact origin but it suffices for present purposes to find that the symptoms complained of do exist and on the probabilities they will not resolve. 12 The plaintiff also complains of symptoms to the head, the shoulder, the neck and the left side of his face. His problems in these areas are recited in the evidence. There is some differentiation of view between the medical examiners as to the seriousness of these matters. In my view the plaintiff does have symptoms. It is probable that they emerged from a combination of physical aetiology and the plaintiff's emotional situation. 13 There is considerable discussion in the medical reports about the possibility of frank brain damage having occurred at the time of accident. I do not think the plaintiff has demonstrated, on the probabilities, that there is actual brain damage. A lot of the opinion emerges from the psychological testing. I do not regard any of the psychologists as suitably qualified to make diagnosis. A number of doctors have commented, however, upon the results of their tests and as I have said, looking at all of the material, and in particular the atypical progress of the plaintiff as described, I have come to the conclusion that frank brain damage is not demonstrated. 14 I am, however, satisfied that the symptoms which the plaintiff manifests are genuine and there is no basis in the evidence for a conclusion that they will disappear. 15 The plaintiff's progress over the past eleven years has, in my judgment, been a descent into misery. His emotional situation is parlous in the extreme. I was able, myself, to see his flat affect as he gave evidence and this has been the subject of comment by medical practitioner after medical practitioner. 16 There is description of his anger. I am satisfied that he became and probably remains obsessively angry about his perception that somehow or other his employer should have rehabilitated him and has failed to do so. That is not a criticism of the plaintiff. His personality was such that this was his response to the culmination of severe injuries. Accordingly, in the ultimate, the circumstance that I have found that the origin of a lot of the plaintiff's problems is not frank brain damage will make no practical difference to the assessment of damages to which he is entitled. 17 I have mentioned that a number of fellow employees and superiors were called, which includes the plaintiff's wife. I accept their testimony. In particular, I accept their descriptions of the marked change in the plaintiff on either side of this accident. He was described as a man who related well to his subordinates but after the accident he lost confidence. 18 As I shall mention later in relation to the claims for economic damage, I am satisfied that the reality is that for ten years between 1988 and 1998 the plaintiff's employer essentially found things for him to occupy himself. He was left behind in the rapid and wide ranging technological changes that were especially noticeable in the communications industry. I am satisfied that he was left behind because the after effects of injury made him incapable of keeping up. 19 It is convenient to mention at this stage one piece of evidence which I found most telling. Mr Wallace, who is the Field Technical Manager for the north of New South Wales, of what is now called 'Telstra' had known the plaintiff when they encountered each other in 1975 at Muswellbrook. He had assessed the plaintiff as a technically competent, bright and good worker; a man who did not require supervision. 20 His later encounter post-accident showed this enormous contrast to the extent that Mr Wallace commented that he, the plaintiff, did not seem to be "the same bloke". 21 The matter to which I seek to pay particular attention, however, is an observation made by Mr Wallace of the plaintiff seeking to work with a laptop personal computer. The evidence demonstrates that the use of such a tool is a frequent requirement of technical officers employed by Telstra in the modern context. 22 Mr Wallace became extremely concerned about the obvious lack of competence in the plaintiff to use this tool. It takes little imagination to understand the difficulties the plaintiff must have encountered. I do not require particular evidence to conclude that looking at a laptop screen is of itself not an easy task for a binocular person; to try and read a screen on an extended basis with a single eye that has a black spot and occasional blanks must be well nigh impossible. 23 The concern of Mr Wallace was that it was his responsibility, and the responsibility of all technical officers, to maintain network integrity. It was mentioned that in this area the modern switching exchange at Goonellabah is in fact the largest in the southern hemisphere and services 145,000 customers. An error on the laptop by someone like the plaintiff could jeopardize the entire integrity of the system. 24 The result was that Mr Wallace sent the plaintiff off to the Commonwealth medical officer. He recommended that his employment be terminated. The field manager, Mr Wallace, contacted the plaintiff and simply told him not to come to work any more. And that has been the case since early last year. 25 The Plaintiff's employment has not in fact been terminated, and the evidence demonstrates that the reason for this is to be found in a policy of Telstra apparently not to dismiss injured employees but to encourage or require them to submit their resignation, and to make application for their superannuation benefit. 26 That is an unusual posture for an employer to take, but it is relevant for present purposes to observe that in my view the plaintiff was totally unfit for employment as at the time of his ceasing to work and, indeed, in real terms has not been fit to do what was required of him since he returned after the accident, and that he has in effect been sheltered as I earlier mentioned. 27 It is convenient to turn to the individual ingredients of damage. 28 The plaintiff claims $22,214 for out of pocket expenses. These are agreed subject to the absence of concession by the defendant of an ingredient of $2,500 included in that sum for travelling expenses to obtain treatment. Counsel for the plaintiff conceded that there were no receipts in respect of these expenses but pointed to a schedule of medical visits totalling approximately two hundred and fifty, and computed therefore that the claim represented an average of $10 per travel. That arithmetic is beguiling, but it needs to be observed that the vast majority of consultations in the schedule were with Dr Banks, who is a local doctor at Casino where the plaintiff resides, and I do not imagine that any real expense was incurred in visiting him. On the other hand, $10 would be in my view ridiculously low to estimate the cost of a visit from Casino to Lismore, or Casino to Brisbane or elsewhere. 29 The defendant does not suggest through its counsel that no travelling expenses were incurred. Observing the general pattern of consultation, and particularly the journeys that have to be made for consultations concerning replacement of the prosthetic eye, I have come to the conclusion that the figure of $2,500 represents a modest claim and is well justified by the extent of travel. 30 Accordingly the first ingredient of damage will be out of pocket expenses of $22,214. 31 The next item is a claim for an amount to avoid the detriment identified by the High Court in Fox v Wood (1981) 148 CLR 438. The sum claimed is $17,138. It emerges from information gained by the accountant, Mr Keep, and is revealed in the material contained in Exhibit D. In the ultimate no submission was made concerning any alternative figure, therefore, that sum will be included in the damages. 32 The plaintiff makes a claim for the future manufacture and fitting of a prosthetic eye on the basis of replacement every two years. A written submission was advanced on behalf of the plaintiff performing conventional calculations, allowing for the cost of the prostheses, travel, accommodation in Brisbane, (where these fittings need to take place) and reducing it to a weekly amount. This was then capitalised on a 5 percent assumed interest rate over the plaintiff's life expectancy. The resulting sum was $9,681. No submission was advanced that that sum should not be included in the damages, and accordingly it will be so included. 33 The next items claimed by the plaintiff relate to the costs of future medical and operative treatment. Again a written schedule was submitted in relation to these claims, and I will use it as a reference point for this judgment. The first claim was for a consultation with a general practitioner on a monthly basis, the second claim was for an eye specialist on an annual basis, and the third for a consultation with a neurologist on an annual basis. 34 The evidence shows that an annual review by the latter two specialists is regarded as reasonably requisite, and I propose to include the calculated amounts. The general practitioner has been consulted on an approximate basis of once per month over a period of years. For the purpose of establishing this I have looked at the pattern of visits to Dr Banks, and it so happens that randomly selecting 1994 and 1998, in each year there have been exactly twelve visits to Dr Banks according to the schedule. Thus a monthly consultation in the past represents the pattern. 35 There was a submission on behalf of the defendant in relation to all these three matters that there was no certainty that these consultations would take place. As a matter of certainty the submission is obviously accurate. Nevertheless, it seems to me that the pattern is established and by reason of the long delay in the action coming to hearing there is an unusually large past pattern to look at for the purpose of judging future probability. I think it is more probable than not that the consultations as claimed will take place, and I propose, therefore, to include the amounts calculated in the damages. 36 The fourth item claimed for the plaintiff is for the cost of reconstructive surgery to the left cheek. The items of operation, hospital, materials and anaesthetic are totalled at $7,280. 37 The plaintiff in cross-examination conceded that he may not in fact have this surgery in any event. Of course on any view it is not going to happen immediately. The plaintiff has not seen fit to undergo this surgery for the past eleven years. There is a chance, however, that he will have it in the future, and I propose to allow $2,500 to cover the chance that he decides to have this surgery. 38 There is a claim for travelling to and from the above medical appointments of $3,000. That seems to me to be reasonable given the likely estimates of what is required to undertake the various medical appointments. That reference is of course principally to the travelling to the eye specialist and the neurologist who are not based in Casino. 39 The final item of future medical or like expenditure claimed by the plaintiff relates to further treatment by way of arthroscopy to the right shoulder, nerve decompression and like studies to the upper limbs, and arthroscopy to the left knee. These items total $12,100. 40 A challenge is mounted on behalf of the defendant, in particular to the claims concerning the right shoulder and left knee, on the specific basis that no particulars of such claims have been ever presented by the plaintiff to the defendant. It is noteworthy, however, that the submission does not go so far as suggesting that the evidence does not support the claims. I do not regard the absence of particulars in all the circumstances as requiring a rejection of the plaintiff's claim, and I propose to include the full amount. 41 I should finally observe in respect of all of these matters that the challenges raised on behalf of the defendant were, as I have indicated, and no challenge was made as to the reasonableness of the estimated costs which are ingredients of the various calculations. 42 The plaintiff's claim for all of the items totals $33,101. I have of course rejected the claim for full payment of reconstructive surgery to the left cheek. Allowing for the finding that I have made, the total of ingredients is $28,321, and I include that amount in the damages. 43 I turn next to the plaintiff's claim for economic loss to date. The method of calculation of a claim for $90,447 is set out in Mr Keep's report, Exhibit D. The loss is computed on the basis that the plaintiff would have been promoted to a rank known as Principal Technical Telecommunications Officer Grade 2 in September 1994. I recognise that an estimate given by one of the superiors, a witness from Telstra, was that he thought the plaintiff might have come into that grade in about 1995. 44 There is of course a great deal of approximation involved in these predictions. The plaintiff did not attain any real promotion, although in the course of reconstruction of the Telecom empire people were given different titles and designations. In my view the estimate that the plaintiff would have become what is called a PTTO-2 in about September 1994 is a reasonable reflection of his probable progress but for the intervention of the accident and his consequential injuries. 45 I should observe that I am fortified in taking that view by the circumstance that the annexures within Exhibit D show that there is a further rank of PTTO-3, and uninjured it is of course possible that the plaintiff's promotion would not have ceased at PTTO-2, although I accept that most of the witnesses who knew him regarded that as his likely level of achievement. 46 It is convenient to mention now a matter raised on behalf of the defendant both concerning past and future economic loss, and that arises out of the evidence of the plaintiff indicating his unwillingness to move from Casino. It was said that therefore the plaintiff himself placed an obstacle to his own progress and promotion. The submission in my view does not fully recognise the nature of the evidence, which was that technical personnel have to be alternatively willing to relocate or to travel. The plaintiff's personal history was that prior to the accident he travelled all the time. Indeed, as I understand it, at the time of the accident he had been working for sometime in the Maitland area, staying there all week and returning home on weekends. As I understand the evidence given by the various employees of Telstra, the technical officers are arranged into teams, and they move into areas where projects are undertaken, and I would assume that once the project is completed they would need to move onto somewhere else; although of course maintenance would no doubt be required from time to time. It seems obvious to me, however, that the entire installation team would not remain in the one location for the purpose of maintenance. 47 In my view, the plaintiff's acknowledged intention not to move from Casino did not provide any relevant obstacle in the past or would it have been likely in the future so to do in connection with his employment by Telstra. 48 I return to the ingredient of damage of past economic loss. The plaintiff has in my view been unfit for any employment since he ceased to attend at Telstra. As I have said, I accept the basis of calculation in Exhibit D, and accordingly I include within the damages $90,447 computed in accordance with that exhibit. 49 I turn next to the claim for interference with economic capacity in the future. A submission was made on behalf of the defendant that the capitalised figure for total economic loss for the balance of the plaintiff's notional working life of $500,382 does not compute. Reference was made to the schedule on page 7 of Exhibit D which showed during the last complete year of wage earning an average nett wage of approximately $730 extracted from the annual figure of $38,002. The plaintiff countered this submission by pointing out that the entirety of Exhibit D showed that there had been as a result of industrial negotiation of a work place agreement two future wage rises which, had the plaintiff been in employment, would inevitably have been received pursuant to that agreement. In addition, the plaintiff's claim was based upon the assumption of promotion that I have indicated I accept in relation to his claim for past economic loss. 50 The acquisition of this was dependent upon the plaintiff accepting employment with a corporation described at page 9 of Exhibit D as NPC Limited, although I believe from other material that is probably a typing error, and the corporation should be NDC Limited. I gather that this is a corporation which exists for the purpose of employing Telstra employees. No suggestion was made that the acceptance of employment was other than a formal step in one of the many restructures of what has been known from time to time as Telecom and Telstra. 51 Page 9 of exhibit D sets out the arithmetical method by which the sum of $500,382 was reached. I am satisfied that assuming a 5 percent discount rate, that figure represents the loss of total probable income by the plaintiff as an employee of Telstra or its employment corporation for the balance of his notional working life. That figure assumes of course a working life uninterrupted by any reason until the plaintiff's retirement at age 65. 52 Senior counsel for the plaintiff invited a discount of what can be called the conventional 15 percent in order to allow for any excess of adverse over favourable vicissitudes during the period involved. Counsel for the defendant submitted that there should be further discount in order to take account of the plaintiff's residual earning capacity. 53 That leads me to consider whether the evidence shows that the plaintiff has such residual capacity. In recent times the plaintiff has made some inquiry of Centrelink. But of course he is in receipt of compensation payments from the employer, and he has not done anything active about seeking employment. Leaving aside, but not ignoring, the other disabilities of which the plaintiff complains, I find it unlikely that any employer would seek to offer employment to someone in the situation of the plaintiff, that is to say monocular, and with significant disabilities in the eye. 54 The plaintiff, as I indicated, was a person prior to the accident of many interests. One matter was that he in fact built his own home, although as I understand it he sub-contracted out things like brickwork, plumbing, but nevertheless his significant contribution to that work does indicate that he has the breadth of talent to which I have made reference. 55 I do not regard those talents as altogether evaporated as a result of the accident. It seems to me that on balance, and on probability, the plaintiff may over the ensuing years earn some money exercising in some way the residual talents which he has. I regard, however, the likelihood of permanent employment as remote. I have determined, therefore, to approach the matter in this fashion. As I have indicated, I accept the integrity of the calculation leading to a capital sum of $500,382. Discounted for vicissitudes that figure reduces to $425,384. That discount being 15 percent as submitted by senior counsel. I propose then to apply a discount to that figure of 10 percent to represent exercise of earning capacity by the plaintiff during the balance of his working life. That would result in a lump sum of $382,845. I am conscious of the arithmetical difference of performing the discounts in two stages from taking a discount of 25 percent, the latter method would reduce the sum by a slightly larger amount. In my view the approach that I have indicated is appropriate in this case. Accordingly, I propose to include $382,845 for future economic loss in the award of damage. 56 The final item is an award for non economic loss. It is agreed that the figure pertinent to a most extreme case is $259,000. Counsel for the plaintiff submitted that given the age of the plaintiff at the time of accident and given the extent of his injuries that applying the statutory duty to proportion I would conclude that 85 percent was appropriate. I am conscious of course that the proportion must be done against a most extreme case, not against the worst case one could imagine. 57 These matters are always the result of impression. I have sought to indicate that I regard the plaintiff's complaints as genuine. In cross-examination both he and his wife conceded that this case had been the source of much worry and that they would both be relieved when it was over. So far as the plaintiff is concerned, I have no doubt that is true but by the same token I am unpersuaded that the relief at the conclusion of litigation is likely to ameliorate the symptoms from which the plaintiff suffers, whether sourced from physical or emotional bases. I have come to the conclusion that the appropriate proportion is 75 percent and I will therefore include an ingredient for non economic loss of $194,250. 58 I summarise then the ingredients of damage which I have found: Out of pocket expenses $22,214 Fox v Wood $17,138 Future prosthesis expenses $9,681 Future treatment $28,321 Past economic loss $90,447 Future economic loss $382,845 Non economic loss $194,250 A total of those ingredients is $744,896

59 I direct entry of judgment for the plaintiff for that amount. Subject to application the defendant is ordered to pay the plaintiff's costs of the action. Liberty to apply. **********

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