CATCHWORDS Damages - award for personal injuries ~- plaintiff 66 years of age at time of trial, 60 vears of age at date of injury - serious iniuries to left arm - other injuries resulting in permanent pain and disability, including double vision - award reduced - no question of principle. LESLEY DAVIES v. GWENDOLINE MAY NINNESS _—__ooo No. ACT G48 of 1985 Coram: Sheppard, Neaves and Pincus Jd. Date : 6 March 1986 Place: Canberra gyms toe te eer ee er a ey eee we, te tlooee a wet Saeehduentancunen tat ia aon ee, yr eer ty re « ot oa sr, va eo ee reer F" wate oo Yate ke IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY No. ACT G48 of 1985 GENERAL DIVISION BETWEEN : LESLEY DAVIES Appeltant GWENDOLINE MAY NINNESS Respondent JUDGES MAKING ORDER: Sheppard, Neaves and Pincus Jd. DATE OF ORDER : 6 March 1986 WHERE ORDER MADE : Canberra MINUTES OF ORDER THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The amount of the fudgment entered in favour of the respondent in the Supreme Court of the Australian Capital Territory be varied by substituting for the amount of $90,300, the amount of $64,670. 3. The respondent pay the appellant's costs of the appeal. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. SOT te oo a. co e - ae oA IN_THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY No. ACT G48 of 1985 GENERAL DIVISTON BETWEEN : LESLEY DAVIES Appellant GWENDOLINE MAY NINNESS Respondent CORAM: Sheppard, Neaves and Pincus Jd, DATE : 6 March 1986 REASONS FOR JUDGMENT THE COURT: This is an appeal from a judaqment of the Supreme Court of the Australian Capital Territory (Gallop J.) by which it was adjudged that the respondent should recover from the appellant the sum of $90,300 by wav of damages in respect of personal injuries suffered by the respondent in a motor accident. Neither before his Honour nor before us was there any issue of liability. The case was one for the assessment of damages only. The respondent was born on 21 November 1918. At the time of the trial she was 66 vears of ade. She was injured in an Tt ' eee = + at wow 7 ee, ITT ma coe 2. accident which occurred on 21 July 1979. The writ in the proceedings was issued on 22 September 1983 probably because the respondent's advisers were waiting for her iniuries to settle before proceedina to have her damages assessed. The respondent's husband was killed in the same accident. After a period in hospital she returned to her home at Swansea near Newcastle in New South Wales. His Honour summarized the iniuries suffered by the plaintiff as follows:- 1. An open fracture of the mid-shaft of the humerus of the left arm with damaqe to nerves of the upper arm, particularly the radial nerve. 2. A fracture of the right collar bone. 3. Lacerations over the left eye and to the back' of the head. 4. A head iniury causing disruption to her vision. 5. Emotional shock. The respondent spent 24 davs in the Roval Canberra Hospital. On discharge she went to the home of one of her sons in Canberra. She staved there for about five weeks under the care of her son's wife. The respondent was not able to look after herself properly. She also noticed that her vision was blurred and that when she could see. she had double vision. Her daughter-in-law bathed her. helped her with her meals. dressed her and generally supervised her convalescence. The respondent was verv depressed, ' sick and tired and constantly in pain. 4s oe 3. One of the respondent's principal problems was the iniurv caused to her left arm. Whilst she was in the hospital in Canberra an operation had been performed in which an intermedullary rod was inserted. On 2 November 1979 the respondent was admitted to the Royal Newcastle Hospital where Dr. Ostinga, an orthopaedic suraeon. performed dn operation on the left humerus. He excised the nail and inserted a compression plate. At operation he found wide separation of the bone ends of about 3 centimetres. As mentioned, the fracture of the humerus was complicated by damage to nerves of the upper arm particularly the radial nerve. After prolonged treatment, includina physiotherapy. the plate worked free and the bone araft failed. The respondent was readmitted to the Newcastle Hospital on 24 March 1980 when a second bone qrafting procedure was performed using a larqger plate and more screws. The procedure was technically satisfactorv. but as time went on it became obvious that it was also failing. A third operation was performed on 27 April 1982. At this operation a bone stimulator was used and satisfactory union of the humerus was achieved. In July 1982 the stimulator was removed. On each occasion after the initial operation in Canberra the respondent was in hospital for about one week. The operations were performed under aqeneral anaesthetic. The donor sites were respectively from the respondent's left hip. right hip and pelvis. The respondent's left arm was supported ina sling all the ' a el ap pe wate . 4. time after the accident until after the stimulator was removed in July 1982. She still uses the slina when she qoes out of the house because of the support to the arm which it qives her. His Honour made findings as to the respondent's residual disabilities. He said that the appellant had submitted that not all the respondent's complaints of residual disabilities were supported by the medical evidence. The findinas which his Honour made were as follows:- 1. The respondent has lost a considerable amount of movement and power in her left arm. She can raise it forwards and sidewavs to about waist level but cannot lift it in front of her bent at the elbow higher than shoulder level without the assistance of her riqht hand. She is severely restricted in her pre-accident leisure activities of sewing. knitting and crocheting because her left arm aches. She gets pins and needies right down the arm into her fingers nearly every dav. The respondent nevertheless has a full ranqe of movement in her left elbow and shoulder. His Honour said that she ate mainly with her right hand and, when she did use her left hand, she bent down towards the food rather than lifting the food towards her mouth. She did her own shopping and walked about one mile from her home to the shops pulling a trollev. She had the shop deliver purchases once a week. In her kitchen activities she avoided anv heavy lifting. TAT =F Dea prey oo yr eee a. oo set . rand : ons sy The fracture of the right shoulder was never treated. It was left to knit of its own accord but has never done so. His Honour found that the respondent had been left with a very larae bony bridae extendina superiorly and posteriorly over the back of the clavicle. The associated swelling pushes on structures in her neck and causes pain and discomfort. Medical evidence accepted by his Honour was that the respondent has the choice of having the swelling removed, thereby alleviatina the effect of pressure. However, this may leave her with an unstable fracture of the clavicle, ununited, and may require bone qraftina. The preponderance of medical opinion is that she should avoid having further surqervy to the clavicle on the right side. The respondent has lost power in her right arm and has the pain and swelling in her neck earlier referred to. His Honour accepted evidence qiven by the respondent that. in addition to the pain on the right side of her neck, she also suffered pain in the cervical spine. This was due toa deqenerative condition of the spine which was aaqravated by the injury sustained in the accident. His Honour thought the condition unlikely to improve and was likely to remain much the same for the rest of the respondent's life. The respondent. has constant pain in both hips from the bone arafts. She takes four pain killers per dav - two in the morning and two in the evenina. q pames Ave wer cre eee eee Vo Teer eee - re I re - sot sof, om 6. The respondent has a scar over her left eyebrow about five centimetres (two inches) in lenath which is not obvious and tends to be obscured by her qlasses. The respondent also has a scar on the back of her head which is within her hairline and is not ordinarily visible. She has a scar on her left bia toe. She has a long scar to the left humerus extending up to the shoulder. The respondent has double vision for which no treatment can be prescribed. His Honour described this disability as one which was "quite annovinag and can be crippling at times". The respondent does not watch as much television as before the accident and she has tended to miss her step from time to time, falling at kerbs. She has to take special care when walkina down steps. She has not driven a motor vehicle since the accident because she cannot see properly. She does not think that her arms would enable her to handie the steering wheel in any event. The respondent has shooting pains over her left eve two to three times per week. The respondent cannot play cards because she cannot shuffle them and tends to drop then. She cannot swim because of the inabilitv to use her arms. . ' The respondent made a substantial claim for the cost of Too er =e 7. domestic help. There was first of all a claim. made pursuant to the decision of the High Court in Griffiths v. Kerkemeyer (1977) 139 C.L.R. 161. for the period of five weeks during which she was looked after by her dauahter-in-law in Canberra. His Honour allowed $500 for this claim. The only challenge to it was based on an absence of particulars prior to the trial. No application for an adjournment of the trial was made as a result of the late furnishing of particulars, nor was it suagested that the appellant was otherwise embarrassed. There is no reason for disturbing this part of the assessment. Pursuant to the same principle, his Honour allowed the respondent $6,000 for assistance rendered her by her sisters over the last five years or so during which she has been in Newcastle. The amount was arrived at by allowing two hours a week at the rate of $9.50 per hour. Other sums allowed her for the past were an amount of $300 for delivery charges made for delivering her shopping and $1,500 for aardening expenses. No substantive challenge to the inclusion of these items in the award was made. Complaint was, however, aqain made of the failure of the respondent's solicitors to provide particulars of them before the trial. In our opinion that circumstance provides no basis for this Court's interference. The award should not be disturbed so far as these items are concerned. A more contentious matter concerns a claim made by the respondent for cleanina down the respondent's weatherboard house a tes se Rye nr pre-e re due to a black film which develops on the house in the Swansea area. The film is no doubt caused as the result of the operations of a number of industrial undertakinas in the area. The respondent agave evidence that she and her husband used to do the work themselves. Her husband used to do the top part of the house and she the lower part. No cleaning work had been done down to the time of the hearing. The claim which his Honour allowed was all in the future. Evidence was given that the cost of cleaning was $160 twice each vear. His Honour allowed the respondent the sum of $320 per vear for the work in the future. His Honour lumped together the continuing expenses he thought the respondent would incur for household help, delivery charaes, aardening and house cleanina. These came to $1,655 per vear. His Honour said that the life expectancy of a 66° year old female was 16.38 years according to the Australian Life Tables. He concluded that, allowing for the vicissitudes of life and a chanae in the respondent's living circumstances once she became older, that she should be allowed twelve vears expenses in the future. He said that that multiplied out to $19,860 which he rounded off to $20,000. His Honour noted that medical expenses paid bv the appellant on behalf of the respondent amounted to §11,352.56. These were not included in the award. His Honour's provisional assessments of the various 9. components makina up the award were as follows:- "General damages $50,000.00 Domestic assistance aqiven by 'the daughter-in-law 500.00 Domestic assistance rendered by the sisters in the past 6,000.00 Past delivery charqes 300.00 Past qardening expenses 1,500.00 Future expenses for domestic assistance. delivery charges, gardening and house cleaning 20,000.00 Total $78,300.00" His Honour considered the fiqure of $78,300 as a qlobal sun and thought it safe to confirm his provisional assessments. On 9 July 1985 he qave judament for the respondent in the sum of $78,300. He invited submissions on the question of costs and counsel then raised with his Honour the question of interest on general damages in respect of the past. His Honour thought it appropriate to apportion, for the purposes of interest, the sum of $50,000, by treating $30,000 of it as appropriate for the past and $20,000 as appropriate for the future. He assessed interest at the rate of 7 per cent on $30,000 for a period of 5 3/4 years. This vielded a fiaure of $12,075. He rounded this off to $12,000, vacated his earlier order and added the sum of $12,000 nes ree ne tle te 10. to Uhe $78,300 thus reaching the conclusion that the award of damages should be $90.300. He directed judament accordinaly. A number of challenges were made to his Honour's award. In summary these were:- 1. His Honour erred in finding that the respondent had limitations in the amount of movement in her left arn. 2. A much reduced fiaure should have been awarded in respect of the cleanina of the outside of the house. 3. The period of twelve vears for which future expenses were allowed was too londa. 4. His Honour was in error in multiplying the figure selected as the amnual cost of expenses incurred as a result of the accident by the number of years for which the claim was accepted. His Honour should have discounted the fidqure in accordance with the principles decided in Todorovic v. Waller (1981) 150 C.L.R. 402. The discount factor to be applied was 3 per cent. 5. The overall assessment of $50.000 for general damages was excessive. 6. The selection of $30,000 as the appropriate fiqure for past 11. pain, suffering and loss of amenities of life was excessive. The award of interest on damages awarded for these past heads was not challenged, nor was the rate of 7 per cent per annum. but it was said that the fiqure upon which the rate of interest was calculated should be substantially less than $30,000. We turn to deal with each of these challenges. The basis for this submission was apparently conflicting evidence qiven by the respondent on the one hand and her treating orthopaedic surgeon, Dr. Ostinga, on the other in relation to the extent of the limitation of movement suffered by the respondent in her left arm and shoulder. In her evidence the respondent said that the arm still had not a lot of power in it. She complained that she could not do all her housework. She said that she could move it to about waist height but could not lift it right up. She referred toa number of household duties as examples of the problem she had. One of these was hanging washing on the line. According to her evidence, she has to put her left hand on the line when it is low and then lift it up. So long as it remains there she can use it to peg out the clothes by passing them to the left hand with her ridqht hand. But if the hand comes off the line it falls down and she cannot use it. The respondent also said that she cannot move her left shoulder fully. 1 ye a eens Ret ee oe TS! i ~ ry te Toa, ube miminemen area aed od _ we ; 12. In a report dated 6 March 1985 Dr. Ostinaga said that the respondent presented with a full range of movement of the shoulder and elbow. He said there was weakness in the arm due to scarring of the muscle on the left side. He added, "The weakness however is only fairly mild". In his oral evidence he said:- "Well, Mrs WNinness is not a complaining type actually. When I saw her last. I think in March 1985, she said that she had a full range of movement in her shoulder but she did complain of some weakness in the arm and she said that she aot some aching. I believe, at that time and this is common after fracture with changes in weather and so forth. And that was about the extent of her symptoms that she told me." Later Dr. Ostinga said:- "Well, if I may say, Mrs Ninness is elderly, she has been rendered a widow by the accident. She has reason to have pain in her neck. her left arm and her right clavicle. There is probably some limitation of movement in the left arm which she had become aware when she tried to do the gardening. Although she could so some things in the garden I do not think she could do anv heavy work." His Honour's resolution of this apparent conflict in the evidence was as follows:- "I turn to her residual disabilities. The defendant submitted that the plaintiff's complaints of residual disabilities were not supported bv the medicdl evidence. I therefore make the following findings of fact in relation to her left arm. She has lost a considerable aay. oT pee ri 7" to apricot more te pres rte 13. amount of movement and power in the left arm. She can raise it forwards and sideways to about waist level but cannot lift it in front of her bent at the elbow higher than shoulder level without the assistance of her right hand. She is severely restricted in her pre-accident leisure activities of sewing. knitting and crocheting because her left arm aches. She qets pins and needles riaght down the arm into the fingers nearly every dav. She has a full range of movement in the left elbow and shoulder. She eats mainly with her right hand and when she does use her left hand she bends down towards the food yather than lifting the food towards her mouth. She mostly does her own shopping and walks to the shops about one mile from her home pulling a trolley. She has the shop deliver her purchases once a week. In her kitchen activities she avoids any heavy liftina." In the submission of counsel for the respondent his Honour's findings are themselves inconsistent. Counsel pointed particularly to two sentences in the above quoted passage from his Honour's judament. The first was, © "She has lost a considerable amount of movement and power in the left arm". The second was. "She has a full range of movement in the left elbow and shoulder". We do not perceive any conflict in what his Honour has said. In the first of the sentences he is dealing with the problems which the respondent has in relation to movement and power in her left arm. Loss of power, it will be recalled, was. in the doctor's opinion, due to scarring of the muscle, not to any iniury to the elbow or shoulder joint. In the second of the sentences he is dealing only with the ranqe of movement which she has in those joints. There is, nevertheless, 14. conflict between Dr. Ostinga and the respondent as to the dearee of weakness in her left arm. In the doctor's view the weakness is now mild. This was not the view his Honour accepted. This was something his Honour was entitled to do. it being open to him to accept, as he did, that the respondent does have the serious limitations in movement in her left arm to which she deposed. To the extent that that evidence was in conflict with the views of Dr. Ostinga, it was open to his Honour to accept the respondent's evidence and discard Dr. Ostinga's evidence. In our opinion the submission that his Honour erred in finding that the respondent had serious limitations in the amount or deaqree of movement in her left arm should be rejected. As mentioned, his Honour allowed the respondent the sum of $320 per year for the cost of cleaning down her house. This was on the basis that the cost would be $160 twice each year. Before the accident the respondent and her husband used to do this cleaning. The husband would do the upper part of the house and the respondent the lower part. The respondent at no time did the work which the husband did and it is not suggested in the evidence that she was ever capable of doing it. no doubt because of the need to stand on ladders or scaffolding. The work which, the respondent presentiy has done is the work of cleaning the whole of the house, not just 15. so much of it as was formerly done by her husband. Plainly she would not now be able to carry out the work of cleaning the lower part of the house because of the various disabilities which she has. It was no doubt upon this basis that his Honour included the amount in the award, but we find it difficult to see how the inclusion of the total cost of cleaning the house could be justified. If the respondent had not been injured, it may be that she could have enaaged someone to help her clean the house, she doing the work which she used to do with her husband and the other work being done by the hired help. The cost of doing work formerly done by the husband is not a recoverable item in this action which is an action to recover damages as a result of the injuries which the respondent has sustained. It follows that the most which the respondent should recover in respect of this head of claim is the cost of the cleaning work which she herself cannot do as the result of her iniuries. There is no direct evidence on the point but in round terms the amount would be $160 per year rather than the $320 per year allowed by his Honour. The second submission ought therefore be upheld. His Honour reached the conclusion that the continuing expenses to which the respondent would be put for household help, delivery charages, gardening and cleaning down the house would be $1,655 per vear. For reasons given this sum should be reduced by $160 to $1,495 per vear, roundly $1,500 per year. His Honour allowed these expenses for a period of 12 woe * pers may 7S a ces <T a 7 Py mn ree rd . ware smy ? ye ae . wo ee ee 16. vears. As mentioned, the respondent at the time of the hearing, was 66 vears of age. His Honour's award would therefore include an allowance for these expenses until the respondent attained the age of 78 vears. The period of 12 vears is challenged on the basis that it would be unlikely that the respondent would have been able to continue her pre~accident lifestyle for as long as 12 vears except by providing herself with assistance of the kind found necessary by his Honour. In other words it was submitted that the probabilities were that, had the respondent not been injured, she would not have been able to do all the household cleaning and qardening work and also the cleaning down of the house herself for a total period of 12 vears. In our opinion there is force in this submission. The matter calls for an exercise in judament. His Honour's views ought not be disturbed unless we are clearly of opinion that the taking of a period of 12 years discloses error. Upon reflection we are of that opinion and we substitute a period of six vears for the period of 12 years selected by his Honour. On that basis the entitlement of the respondent to moneys for future expenditure is an entitlement to $1,500 per annum for a period of six years. The three per cent tables available to us give the present value of $1 per week rather than $1 per year. The present ea aad qo vv My no en ents rset \ ae hk - wow 17. value of $1 per week for six vears is $286.90. Fifteen hundred dollars per year is equivalent to $29 per week (to the nearest dollar). The present value of $1,500 per vear for six years is, therefore, approximately $8,320. That sum should be substituted for the amount of $20,000 included in the award by his Honour for future expenses. The question arises whether the award of general damages of $50,000 was excessive. We have earlier described the verv bad time throuah which the respondent had been up to the time of the hearina. Not only was she involved ina verv distressing accident: there were arave problems in treating her. The respondent has an expectancy of 16 years. She still has a right clavicle which is not mended. She has the limitation of movement in her left arm to which reference has been made. She has pain in her neck. All these conditions remain permanent. Into the baraqain she has double vision which is also a permanent condition and seriously affects her enioyment of life. That condition will continue to affect her for the rest of her life and will increasingly do so as her age causes her to lead a more sedentary life than she has done in the past. That will be because pastimes such as watching television. sewing, crotchetina and plaving cards are either denied her or made difficult for her to enjoy. All that having been said. we are nevertheless of opinion that the sum of $50,000 for qeneral damages was too high. SI er ea ese rte es we ace oe ee ey way ts ee ae ree cao ul of AL ne ye Geer ee 18. One matter we have taken into account in reaching that conclusion is that there will be included in the award a not insubstantial sum for past and future domestic assistance, delivery charges and gardening expenses. The moneys so awarded are included to compensate the respondent for her inability to do many of the things she would, but for the accident, have been able to do for herself. Such an amount being included in the award, one has to be careful. when one comes to the question of general damages. that one does not fall into error by failing to allow for possible over-lapping. The exercise of awarding general damaqes is very much an exercise of judament and minds will often differ as to what is an appropriate fiaqure. At the appellate level a court ought not to interfere unless it is clearly of opinion that the amount of the award is such that it itself discloses error. Awards of damages to plaintiffs who suffer little economic loss and who are in the later vears of their middle aqe, or who are elderly, are notoriously difficult. Obviously one of the matters which must be taken into account as a reducing factor is the age of the plaintiff. simply because of the reduced life span such a plaintiff will have compared with a younger person. Notwithstanding the difficulties and uncertainties to which we have referred, we have reached the conclusion, as we have said, that the award of $50,000 for qeneral damages was appealablv hiah. We Vay ~ -p- wee wt sore om wey srw rs . 19. propose to reduce it to $40,000.. Our conclusion in that reaard makes it necessary to reduce the amount upon which interest is to be awarded. We think it appropriate to apportion the sum of $40,000 for qeneral damaqes equally between the past and the future. Accordingly, the amount to be included in the award for interest will be $8,050 rather than $12,000, arrived at by calculating interest at 7 per cent per annum on $20,000 for 5 3/4 years. It follows that the appeal must be allowed and the amount of judament entered in the Supreme Court varied by the substitution of the sum of $64,670 for the sum of $90,300. The amount is made up as follows:- General damages $40,000.00 Domestic assistance aiven by the daughter-in-law 500.00 Domestic assistance rendered by the sisters in the past 6,000.00 Past delivery charges 300.00 Past qardening expenses 1,500.00 Future expenses for domestic assistance, delivery charges. aardenina and house cleanina, 8,320.00 Interest 8,050.00 mop ee ae Seated wre ors eee pase pe wot 20. $64,670.00 The respondent is to pay the appellant's costs of the appeal but we would aqrant to the respondent a certificate pursuant to sub-sec. 6(2) of the Federal Proceedings (Costs) Act 1981. } certify that this and the 14 precedir.g pages are a true copy of the reasons for judgment herein of the Court Lao Azhar Deted G "ARCH 1786 Associate To Io Sor TH Pat es oe noe