ww ee wgneer ow Le eres ae a . DAMAGES - Adequacy - Future pain and suffering - Loss of earning capacity - Desirability of future operation - Chance of success - Operation in fact occurring before appeal. ELIZABETH ROBYN MILDREN v ALAN VINCENT NICHOLS No. N.T. G2 of 1986 EVATT, SHEPPARD and PINCUS JJ SYDNEY 4 JULY 1986 ae eee IN_THE FEDFRAL COURT OF AUSTRALTA ) NORTHERN TERRITORY DISTRICT REGISTRY ) No. NTG 2 of 1986 GENERAL DIVISION ON APPEAL FROM THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA BETWEEN : ELIZABETH ROBYN MILDREN Appellant AND: ALAN VINCENT NICHOLS Respondent CORAM: : Evatt. Sheppard, Pincus JJ DATE OF ORDER: 4 July 1986 WHERE ORDER MADE: Sydney MINUTE OF ORDER THE COURT ORDERS THAT: 1. tJ 1o) The appeal be allowed. The amount of the judgment entered in favour of the appellant in the Supreme Court of the Northern Territory be varied by substituting for the amount of $32,728.30, the amount of 347,728.30. The respondent pay the appellant's costs of the appeal. Note: Settlement and entry ot orders 15 dealt with in Order 36 of the Federal Court Rules. Rae ous we, sak fe rses ems IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) N.T.G. 2 of 1986 ) GENERAL DIVISTON ON APPEAL FROM THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALTA BETWEEN: ELIZABETH ROBYN MILDREN Appellant AND: ALAN VINCENT NICHOLS Respondent CORAM: EVATTI, SHEPPARD, PINCUS JJ. 4 JULY 1986 REASONS FOR JUDGMENT THE COURT: This is an appeal by a plaintiff from the Supreme Court of the Northern Territory in an action in which, judgment by default having been obtained, the Court had only to assess damages. The plaintiff, whose right shoulder was _held to have been injured in a motor accident on 17 November 1978, was awarded damages totalling $32,728.30. At the hearing of the appeal, counsel challenged two components of the award only, namely a sum of $10,000 awarded in respect of future pain and suffering and loss of amenities, and a sum of $5,000 in respect of "loss of earning capacity in the eve Wow ang eee San Re future", Although the attack on the judgment of the learned trial judge is thus limited, it is necessary to examine the facts as a whole to determine whether the appellant received. as she claimed, less than her due. The appellant was born on 28 January 1950 and was thus 36 at the date of judgment, which was delivered on 21 February 1986. Before the collision we have mentioned, the appellant had followed a number of occupations: nursing, journalism and then wark as a debt-collectina clerk with a firm of solicitors. She ceased that work at the beginning of 1976 and married her second husband, a practising barrister, in May 1977.' In March 1978 a male child of that marriage was born, and on 17 November of that year, as we have mentioned, there occurred the collision which gave rise to the action. It appears that the shoulder injury which. as the learned trial judge held, was sustained in the collision, did not immediately manifest itself. Indeed, his Honour was apparently somewhat troubled by inconsistencies in the evidence of the plaintiff as to the time at which she first had right shoulder pain after the accident, but after a careful examination of the evidence, his Honour expressed himself as satisfied that the shoulder symptoms should he causally linked to the accident. His Honour held, in effect, that the first presentation of symptoms occurred about a month after the accident, but ee ee ee nothing of any significance happened until early the following year when, while carrying her baby son, the plaintiff suffered pain in the shoulder. She had, according to the findings, other isolated bouts of trouble with the shoulder in 1979, and was treated by drugs and phvsiotherapy. One of the drugs, Naprosyn, caused her to have serious abdominal trouble on two occasions, once in 1980, and once in 1984. After the second. she ceased to take Naprosyn and that trouble ceased. The learned trial judge held that on overseas trips in 1979 and again in 1983 the plaintiff suffered pain in the shoulder as a result of carrying luggage, and on the latter occasion, the enjoyment of her holiday was spoiled by the pain. However, his Honour also found that the plaintiff continued to play tennis twice a week after the accident for "a couple of years", and at about 1980 began to learn sailing and bought a 20 foot fixed~-keel yacht. She sailed competitively until about 1983. Speaking, apparently, of the period from the date of the accident until 1983, his Honour said: "Throughout the whole of this earlier period I find that the plaintiff was hardly affected at ail except on the specific occasions I have mentioned when the pain in her shoulder was appreciable but by no means excruciating or disabling to any significant degree." a ees ~AAhaters tte Pie SPL His Honour held that the plaintiff was "able to cope adequately with what disability there was ... The evidence was that in July 1980 the plaintiff began to work for her husband as a legal secretary, and she was still so working at the date of trial. His Honour held that the plaintiff "coped satisfactorily" until early 1984 and that, until then, "her lifestyle was not seriously disrupted except for the specific episodes of which she gave evidence". In 1984 and 1985, however, the plaintiff, whose symptoms were worsening, sought further medical advice and was given a number of cortisone injections. She said there were five, but the doctor who administered them gave evidence of only three. Whatever the precise number, only some had a beneficial effect. The consequence of each such injection was a short period of considerable pain followed by relief for some months. At the date of trial, the plaintiff's shoulder pain was quiescent, the plaintiff having recently had a cortisone injection. To use the plaintiff's words, "At the moment things are good and I can cope a lot better than before I had the injection." So far as this recital has gone, there is, we think, nothing in the facts which is presently the subject of contention. It was his Honour's treatment of the plaintiff's future prospects which evoked complaint from senior counsel for the appellant. The learned trial judge said, speaking of two orthopaedic specialists who gave evidence, that both agreed that = —4--- ee Tr ee ae te to Per Rete Rar the time would come when an operation would be likely to be performed on the plaintiff's right shoulder. His Honour said in his reasons: "The prospects of success of that operation are fairly high. Both doctors agree that success can be rated at between 85 to 90 percent ..." Senior counsel for the appellant submitted that his Honour was in error in making the finding just quoted. Of the two specialists referred to, one only (Dr. Baddeley) spoke of &5% to 90% chance of success. The other, Dr. P.L. Fry, said the procedure in question had "a certain notoriety" and "got a rather bad reputation", but that "the results are much better these days and the answer is simply yes, in the right hands treating the right person in the right hospital at the right time you can certainly improve things, yes", Making full allowance for the disadvantage inherent in our not having seen and heard the witness, we cannot concur with the view his Honour expressed as to the effect of this evidence, namely that Dr. Fry agreed that the prospects of success of the operation were 85% to 90%, The point is of some importance, for three reasons. Firstly, his Honour said he accepted Dr. Fry's evidence; secondly, senior counsel for the appellant informed us, with the consent of counsel for the respondent, that the plaintiff had infact had the operation in question, in April 1986; thirdly, his Honour''s view of the level of compensation as : to future economic and other losses was much influenced by his opinion relating to the outcome of operative treatment. As to the last point, his Honour found that the operation would "alleviate the plaintiff's pain and suffering and, toa large measure, put right her present disabilities". The evidence on which that was presumably based was a statement by Dr. Baddeley to the effect that after surgery the plaintiff would probably be "as she is now, in this good phase, with only minor restrictions". The reference to "good phase" seems clearly to have been prompted by the fact that the plaintiff had, at the date of trial, the benefit of a period of after cortisone treatment, as mentioned above. At a later point, his Honour expressed the view. basing himself on the evidence of Dr. Baddeley, that after the operation the plaintiff would be restored to a permanent level of disability of the order of 10%. Dr. Baddeley said in his evidence that, at her worst when seen by him, the plaintiff's disability had been of the order of 25%. The information supplied by counsel of course removed any uncertainty as to whether the operation would become necessary and, to our minds, tended somewhat to strengthen the appellant's case. We were not told what the operation's effect was; perhaps that was not certainly known at the date of the hearing before us. Sees eee Cte ae ed The aqreed statement that the operation took place should be treated as if evidence on the point had been admitted on appeal. We should then consider the whole of the facts presentlv available, as was done in Curwen v. James (1963) 1 W.L.R. 748 where a Lord Campbell's Act plaintiff remarried after judgment, Mullholland v. Mitchell £19713 A.C. 666 where' the plaintiff had to move to a nursing home after judgment. McCann v. Sheppard (1973) 1 W.L.R. 540 where the plaintiff died after trial and before appeal, and lastly in Government Insurance Office of New South Wales v. Maher (1981) 55 F.L.R. 187, a decision of this Court. The case last mentioned was similar to Curwen v. James and the Court took the plaintiff's remarriage into account, resulting in a substantial reduction of the damages. Apparently such a course may be followed, despite the fact that an appeal to this Court is not by way of rehearing: Buralla Pty. Ltd. v, Plant (1984) 54 A.L.R. 29. The learned trial judge allowed a sum of $5,000 loss of earnings on the assumption (which has proved ta be correct) that the plaintiff would have an operation on her shoulder. but made no further allowance for future economic loss. His Honour held that. on the basis of Dr. Fry's evidence. the plaintiff, after the operation, would "have her earning capacity restored to her". As we have mentioned, we cannot read Dr. Fry's evidence as according to the operation such a high prospect of a happy a a A rene sneey outcome as his Honour held. Dr. Fry said that if the plaintiff obtained a job that "demanded repetitive and fast typing for long periods then she would undoubtedly have problems". He gave no assurance that such problems would disappear after operative treatment. Looking at the matter broadly, and giving all proper weight to the advantages the learned judge had in assessing the plaintiff's disability, it seems to us that the appellant has made qood her point that his Honour was in error in his treatment of future economic loss. He allowed nothing for reduced earning capacity in the future, other than for a specific anticipated period of disability while recuperating from the operation. At the lowest, some allowance should have been made for the risk that the operation would not be successful. Apart from that, even onthe basis that the operation was very likely to he successful, we do not think that his Honour was right in treating the plaintiff as having no compensable loss of earning capacity. Although she had the advantage of receiving a handsome salary while working as her husband's secretary, her counsel arqued, and we think it is right, that on the findings the plaintiff's shoulder injury, even if improved by surgery, could be a significant handicap on the open labour market. If, for example, her husband died or ceased to be a barrister and she were forced to compete for work aS a secretary with other women not having her disability, one would think that a substantial risk of at least some loss would arise. Counsel for the respondent argued ee eee ier = AP ee a ed me ae correctly that, in that situation, the plaintiff might seek employment in which her shoulder disability would be a lesser handicap than it would be in work as a typist - for example, in journalism, work she had once performed. Yet, even on that basis, the plaintiff, we think, is entitled to some compensation for the moderate handicap she would bear in exploiting the range of opportunities open to her. Senior counsel for the appellant also arqued that for similar reasons the allowance made for future pain suffering and loss of amenities ($10,000) was inadequate. He pointed out that $15,000 was allowed under that heading to the date of trial (a period of six and a half years) and that $5,000 for the whole of the rest of the plaintiff's life seemed disproportionately low. We agree, principally for the reason that we think his Honour took too sanguine a view of the likely effect of the surgery. We were urged by senior counsel for the appellant to send the matter back for a new trial on the question of damages, if satisfied of the correctness of his complaints about the reasons of the learned trial judge. Although there are some attractions in that course, we are satisfied that this is not a case in which it is mecessary, in order to make a just award, that the matter be retried. Both sides appear to be content to accept the learned trial judge's findings, subject to the important exception mentioned above. Neither party attempted to Place before us any evidence as to the actual effect of the war too ewe ee "~ mek Bete Ol vzerwer te Saeed 19, operation, so far as it can presently be discerned. There is a necessity to strike a balance between the attaining of a perfectly correct outcome and the amount of community resources devoted to that end. We have come to the conclusion that the proper course is not to order a new trial, but to increase the award made by the learned trial judge by $15,000 as additional compensation for loss of earning capacity and future non-economic loss. The appeal will be allowed with costs, and the judgment in favour of the plaintiff increased to $47,728.30. ' ! . . } Tl Vor ani tle pietond pe tte a toce cory of the - . ther ne Oa relavloe. 222 of Ae Tomour: -_ as ee ee = - +t — 7+