HAINES v HIGGINS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KirBY P, MCHUGH and CLARKE JJA 24 November 1988, 16 December 1988 [1988] NSWCA 60 DAMAGES — negligence action — quantification of damages — injury to back of female school cleaner aged 40 — underlying degenerative condition of the spine — subject injury acknowledged to have triggered subsequent disabilities — plaintiff lives in Taree — ceases work after injury — assisted in house chores by members of her family — medical evidence indicates permanent disability with possible disc protrusion — trial judge (Mathews 3) enters judgment for $255,165.04 — challenge to allowances for loss of economic capacity; home help and general damages — held: Challenges to all components save for future general damages not sustained — some double counting in allowances for future general damages and allowances for future loss of earning capacity and home help — provision for home help in the circumstances properly made. Griffiths y Kerkemeyer (1976-77) 139 CLR 161; Burnicle v Cutelli [1982] 2 NSWLR 26, 37 applied — but provision for general damages exceeds bounds of sound discretionary assessment — general damages for the future reduced from $50,000 to $25,000. Claims against the Government and Crown Suits Act 1912 ORDERS 1. Appeal allowed. 2. Judgment of Mathews 3 dated 16 October 1987, set aside. 3. In lieu thereof order that the appellant pay to the respondent the sum of $231,497.54. Credit to be given for any amount already paid. 4. The appellant to pay the respondent's costs of the trial. 5. The respondent to pay the appellant's costs of the appeal. Kirby P, McHugh and Clarke JJA The appellant is the nominal defendant appointed pursuant to the Claims against the Government and Crown Suits Act 1912 in respect of a claim for damages brought by Mrs Maureen Higgins (the respondent). He appeals from a judgment in favour of the respondent, entered on 16 October 1987 by Mathews J. The respondent claimed negligence for which the appellant was liable following personal injuries sustained by her on 24 August 1982. At that time, the respondent was employed by the Department of Education as a cleaner. She sustained injury when attempting to close a very stiff window at the Taree Primary School where she was employed. The injury caused trauma to her lower back. Mathews J found that the injury had been caused by negligence for which the appellant was liable. Her Honour's finding in that regard is not challenged in the appeal. No substantial issue of the credit of witnesses was involved at the trial. This Court can therefore perform its function of reviewing the judgment entered by Mathews J upon a consideration of the evidence adduced in the case. However, an appeal such as the present is not to be approached as a retrial of the issues determined at first instance. To attract the intervention of this Court, error on the part of the trial judge must be shown. Only then will the Court order a retrial or, in appropriate cases, reassess damages for itself. 2 UNREPORTED JUDGMENTS Mathews J directed that judgment be entered in favour of the respondent in the sum of $255,165.04. In written submissions and at the opening of the appeal, the appellant contended that this sum was completely disproportionate to the injuries and disabilities proved at the trial. In short, it was put that the judgment was approximately double that which the appellant should have secured. Eventually, however, a number of specific items amongst those from which the judgment was calculated, were singled out for criticism. In the end, these too were narrowed down to three. These were the component allowed by her Honour for the respondent's loss of earning capacity both prior to the trial ($47,000) and thereafter ($107,440)); the amount allowed by her Honour for home care necessitated by the respondent's back disabilities ($55,005); and the amount allowed for general damages ($70,000). In our opinion, only one of these criticisms is made out. This was the complaint about the level of the general damages which her Honour assessed to cover that head of the respondent's damage in the future. In our view, that component of $70,000 should be reduced by $25,000 to $45,000. The judgment should, in turn, be reduced by that sum. The opportunity should also be taken to correct a mathematical error which, by common agreement, her Honour made in deriving the final judgment which she entered. It was likewise the common agreement of the parties that this Court should proceed to a reassessment. It can safely do so in the circumstances of this case. The result is that the appeal must be allowed and in lieu of the judgment entered by Mathews J, there should be substituted a judgment in favour of the respondent in the sum of $231,947.54. We shall now state how we come to these conclusions. The injury and its immediate consequences The circumstances of the injury to the respondent were accurately described by Mathews J in these terms: [W]hen she found the window difficult to move, she went in search of the only male cleaner at the school in an attempt to secure his assistance. He had unfortunately left for the afternoon, so she returned to the unruly window and continued her attempts to close it. In doing so, she had to lean across a cupboard which was approximately 2 feet wide and which was set against the wall beneath the window. She ultimately succeeded in closing the window. In the process however, she felt a pulling sensation in her back. Thus began a lengthy and continuing history of back pain and incapacity, which I must accept had its origins in this incident. The appellant did not contest the happening of the injury; the absence of symptoms before it occurred; the continuity of symptoms thereafter right up to the date of trial and the likelihood of a degree of incapacity flowing from the injury into the indefinite future. In these circumstances, her Honour's conclusion about the injury and its importance in the respondent's life stands unchallenged. The area of dispute relates to the precise nature of the injury which was sustained and the exact extent to which the subsequent disabilities and limitations, of which the respondent complains, can be brought home to the appellant. It is important to understand something of the background of the respondent in order to assess the impact upon her of the injury which she sustained. After leaving school she worked as a process worker until she was married. By her marriage she had three children; a girl and two boys. She commenced work for the Department of Education as a cleaner some eight years before the subject injury. At first she was employed as a temporary. However, she was ultimately made a permanent employee. She was working in that capacity when she was injured. URJ HAINES v HIGGINS (Kirby P, McHugh and Clarke JJA) 3 Following the injury, the respondent went off work for about a fortnight. She then returned to work. There then commenced an intermittent record of attempted returns to work and incapacity causing further loss of time. It is not necessary for us to detail these absences. They are sufficiently recorded in the judgment under appeal. At the trial it was agreed that, had the respondent not been injured and had she remained in the employ of the Department she would, but for injury, have been earning $240.54 nett a week at the time of trial. Upon that basis, Mathews J found that the loss of wages suffered by the respondent during the various proved periods of absence from work to the date of the trial was $49,061. The appellant, at the trial, urged that the respondent had a potential to earn a significant sum, even following the injury. This submission did not greatly impress Mathews J. Her Honour took into account the obvious difficulties faced by a woman of middle years with limited education and experience, having only her labour to sell in the town of Taree, handicapped by a significant disability and by constant pain in her back when required to exert herself. Upon this basis, her Honour reduced the amount recoverable for loss of earnings to the date of trial, but only by $2,061. This left the amount which her Honour allowed for loss of earnings and loss of earning capacity to the date of trial at $47,000. Before us, the appellant criticised the approach taken by Mathews J in this regard. In particular, it was argued that the respondent had a greater earning capacity than her Honour had assessed and that the respondent had not tried sufficiently hard to secure work. Ultimately, however, the appellant conceded that it would be extremely difficult for a woman such as the respondent to have obtained work in Taree, even if she had searched for it more diligently than the evidence showed was the case of the respondent. In our view, the approach which Mathews J took to the assessment of the loss of earnings to the date of trial was entirely open to her Honour on the evidence. It demonstrates no error. It should not be disturbed. The medical treatment and opinions Following her injury, the respondent consulted a local medical practitioner, Dr Wallman. Dr Wallman was not called to give evidence on behalf of the respondent at the trial; nor was his report tendered. When, at the trial, counsel for the appellant attempted to tender Dr Wallman's report before Mathews J, the respondent objected. The report was not admitted into evidence. The appellant urged that this conduct on the part of the respondent showed that Dr Wallman's evidence would not help her case. Whether or not this be so, it does not appear to have any great relevance. A great deal of specialist medical testimony was placed before her Honour. The appellant conceded that the subject injury was the trigger which set in train the disabilities which followed it. In these circumstances, no great weight can be attached to the reluctance of the respondent to have Dr Wallman's evidence placed before the court. What he might have said is in the realm of speculation. After the respondent returned to work and began to suffer more serious symptoms, including sciatic pain, she passed to the care of Dr GM Thomas. He is a specialist surgeon. He first saw her in May 1983. His reports were in evidence. They disclosed various diagnostic tests which were Performed by him to identify the precise nature of the respondents injury. One of them was a lumbar spine CAT scan, Performed on 31 October 1983. This showed a "minor left sided postero-lateral bulging of the L5-S1 disc". There was also bulging at the L4-5 disc. The scan did not, however, show evidence of nerve compression. This 4 UNREPORTED JUDGMENTS report and the signs and symptoms recorded by Dr Thomas led him to the opinion that the respondent had developed a muscular and ligamentous strain of her lumbo-sacral spinal area which was aggravated by the work of a school cleaner and by the performance of domestic chores. At first, Dr Thomas was optimistic that the condition would settle down. His later reports record a further CAT scan in 1986. The persistence of symptoms eventually led to the suggestion by Dr Thomas that the respondent should seek a further specialist opinion. The respondent was referred to Dr KM Fuller, an orthopaedic surgeon whom she saw at the request of her solicitors. He concluded that the respondent had suffered a chronic back strain with early lumbar disc degeneration. He described the disability as "mild to moderate". But this was only whilst the respondent was not working. A resumption of heavy work, such as that of a school cleaner, "could cause aggravation of her present symptoms.... and would not be advisable" The respondent also saw Dr DG Seaton, another orthopaedic surgeon, at the request of her solicitors. He diagnosed a soft tissue strain to the lower spine "in the form of a lumbar sprain". He expressed the opinion that "it may be that she has a frank disc protrusion that has not, as yet, shown out". He caused further X-rays and CAT scans to be performed. These suggested to Dr Seaton that "she does have discal damage at the lumno-sacral junction but it is only slight". Dr Seaton did not think that the respondent would get much better. He was against a spinal operation. He advised her to refrain from heavy work, whether in employment or at home. For its part, the appellant referred the respondent to Dr AP Millar. His report in July 1986 suggested that her condition was "functional", ie, not physical in origin. He expressed the opinion, common with the other medical witnesses that the respondent was "fit for light work needing alternate sitting and movement." The respondent was also seen by Dr RH Millson, a medical officer employed by the appellant's insured. His report of 14 September 1984 was along lines similar to that later expressed by Dr Seaton: The worker appears to have a chronic ligamentus (sic) strain but still could have a small disc protrusion at the LS-S1 level. Her injuries could be medically consistent. Her condition appears to permanently unfit her for her pre-injury duties. Her life span appears to be normal. Finally, the appellant also referred the respondent to Dr BJ Ireland, an orthopaedic surgeon. He alone gave oral evidence at the trial. But his conclusions were much the same as the other medical witnesses. In his view the respondent had a "long standing degenerative change in her low back". He conceded that the incident at work may have precipitated the onset of symptoms. But he concluded: "Tt is impossible to say that it was the incident of closing the window that triggered all this off or whether it was just time catching up with her. Dr Ireland was not impressed with the respondent's assertion that she needed assistance from others, at least to the extent claimed, in the performance of her housework. The need for family help in domestic chores The evidence about assistance to the respondent at home can be briefly stated. As we have said, the appellant was, at the time of injury, a married woman with three children. She was divorced from her husband on | July 1987. It was not suggested that the divorce was in any way related to the subject injury or the subsequent disabilities. URJ HAINES v HIGGINS (Kirby P, McHugh and Clarke JJA) 5 The respondent's eldest son was married and lived in Taree with his wife. Evidence was given that this woman, the respondent's daughter-in-law, helped her in work around the house. There was also evidence that, from time to time, the elder son performed lawn mowing and cleaning of the swimming pool, activities which the respondent claimed were now beyond her. The evidence also showed that her younger son helped her with making the beds, mowing the lawn and cleaning his own room. The respondent's daughter lived with her at their home in Taree until July 1986 when she left the home to set up on her own in Taree. Nevertheless, she continued to do a number of duties around the house to help her mother. These were described by her in evidence as follows: Q. So far as the amount of time that is involved is concerned, can you give us some estimate as to how many hours in a week you in fact do any of this work for your mother? A. Probably an hour during the week and then 2-3 maybe 4 hours on the weekend. Q. What about your sister-in-law? What have you observed as far as the time she puts in is concerned? A. I think she does the same, probably an hour, or probably about roughly two or three hours, because she has two kids, two children. Q. She does a bit less than you does she? A. Yes. Q. And the two boys? A. They still do the lawns, mostly weekends. Q. The lawns is just a sometime thing is it? A. Yes. Q. You have told us your younger brother makes the beds in the morning? A. Yes. At the trial, as recorded by Mathews J, the appellant conceded that the respondent was entitled to a component in her judgment based upon the principles established by the High Court of Australia in Griffiths v Kerkemeyer (1976-77) 139 CLR 161. On the appeal, the appellant sought to resile from this agreement. He asserted that no allowance should be made either in the past or in the future for domestic assistance to the respondent. Although Dr Ireland expressed the view that the respondent was more able to perform domestic chores than she made out, the balance of the medical evidence reviewed above and other evidence, some of it specifically directed to this question, clearly sustained a conclusion that the respondent was entitled to be compensated for the voluntary assistance to her, offered to her by members of the family, performing duties which she could not perform by reason of her injury and consequent disabilities. It will be necessary to return to this matter. The components of the judgment entered Mathews J did not in her judgment, set out, in terms, a schedule of the components from which the judgment was to be made up. However, collecting the various items identified in the course of her Honour's reasons for judgment, it is clear that she arrived at the judgment by adding together the following sums: "Out of pockets Past $ 4,542 Future $ 3,400 Loss of earnings Past $ 47,000 Future $ 107,440 Home care 6 UNREPORTED JUDGMENTS Past $ 20,948 Future $ 34,137 General damages Past $ 20,000 Future $ 50,000 Interest on past $ 7,500 general damages Less Workers' Compensation Payments (s10) (s9 or s11) TOTAL JUDGMENT Following Fox v Wood (1981) 148 CLR 438, the respondent was entitled to have credit for an amount of $1,331.70. By a mathematical slip, this sum appears to have been omitted in the calculation of her Honour's final figure. No cross-appeal or notice of contention was filed by the respondent in respect of this sum. But the appellant did not contest that a slip had occurred. The respondent asked that it be taken into account in any adjustment which the Court might make to the judgment. This is what we propose to do. Challenge to medical expenses and deductions for vicissitudes. At first, the appellant objected to the allowance of $3,400 made by her Honour for future medical expenses. He claimed that there was no evidence to sustain this allowance. But in the end, this objection was not pressed. Her Honour based her allowance for these expenses on a schedule setting out the cost of pain killing tablets and an estimated necessity to consult medical practitioners from time to time. The objection to this component of the judgment is not sustained. We have already given our reasons why the objection to the allowance made by her Honour of a great part of the loss of income to the date of trial is not sustained. So far as the allowance for future loss of earning capacity is concerned, we see no error in what her Honour did. At first it was claimed that it was based upon a mathematical mistake in her Honour's computation of the sum allowed. However, we see no mistake. What her Honour did was to record the submissions made on behalf of the respondent. This was that she should recover an amount equivalent to the salary paid to a comparable employee over the balance of the projected working life of the respondent to age 60. Deducting the "normal 15% for vicissitudes", by application of the 3% tables, this produced a sum of $133,557. Her Honour recorded this submission but she did not take that course. Instead, she rounded off the projected weekly wage loss suffered by the respondent to $200. This sum acknowledged a "residual earning capacity" of just under $50 a week when compared to the amount which the respondent would, but for injury, have been earning in her previous employment. By the application of the same tables over a period of fifteen years, this produced a figure of $107,440, when a 15% deduction was allowed for vicissitudes. This is the sum her Honour eventually included in the judgment. We see no mathematical error in that approach. 294,967.00 2,962.50 36,838.66 255,165.84" URJ HAINES v HIGGINS (Kirby P, McHugh and Clarke JJA) 7 As a second argument, the appellant urged that such an allowance was erroneous for two different reasons. First, it was said that the "normal" or "conventional" allowance for vicissitudes of 15% was not inflexible and should not have been adopted by her Honour as such. This Court has said as much on many occasions. However, we do not take her Honour to have applied an inflexible standard. She did no more than to make a deduction for vicissitudes. She was right to do so. But the appellant also claimed that, upon the evidence of this case, a greater deduction was called for. This was because, as it was put, the underlying condition was congenital. It would ultimately have presented itself, even had the respondent not been injured in the way she was. Whilst there is some force in this submission, the fact remains that the respondent had a good work history prior to injury. She suffered continuous disability thereafter. The continuation of economic consequences of this disability, relevant to a person with the respondent's earning capacity, was frankly and properly acknowledged by the appellant. The difficulty of securing work, suitable to a person such as the respondent in Taree, was also properly acknowledged. Had a larger discount for the basic nature of her condition and the vicissitudes which it presented been made by her Honour, we would not have been inclined to interfere with it. However, we cannot say that the approach which her Honour took demonstrates error. It was within the range which was open to her Honour in the exercise of the quasi discretionary evaluation of the respondent's loss of earning capacity based upon the evidence. The allowance made for home help There remain the final two arguments of the appellant concerning the allowance made by her Honour for home help and for general damages. It will be remembered that under the first head, her Honour allowed $20,948 for the past and $34,137 for the future. Under the second head, she allowed $20,000 for the past and $50,000 for the future. The appellant complained that these sums were too high of themselves. He also complained that they represented an element of double counting. He urged that nothing should be allowed for home care, either for the past or for the future and that a proper allowance for general damages was $10,000 for the past and $25,000 for the future. Having regard to the evidence in this case, we do not agree that her Honour erred in allowing for home care. The evidence of the respondent and of her family, sustained by the medical opinions already cited and supported also by a letter from the Dial-an-Angel home help service, which was admitted into evidence, amply justify the allowances which Mathews J made in this regard. The appellant then urged that, if an allowance were to be made for home help, it should not be for assistance to members of the respondent's family but only for assistance necessary for the performance of domestic tasks previously done by and for herself. The respondent objected that, had this issue been in contest at the trial, her evidence would have differentiated with greater precision the detail of the various tasks performed by members of the family. There is some merit in this objection to the change of heart on the part of the appellant. It will be recalled that he did not contest an entitlement to this head of damages at the trial. But in any case, the tasks described are overwhelmingly those which the respondent would have to do for herself especially given her status as a divorced woman whose children had left or were likely to leave home. We therefore see no infraction on her Honour's part of the principles laid down in this Court in Burnicle v Cutelli [1982] 2 NSWLR 26, 37. Nor do we see any occasion in this 8 UNREPORTED JUDGMENTS appeal to reconsider the authority of that case notwithstanding what was said by the Full Federal Court in Hodges v Frost (1984) 53 ALR 373. The appellant then submitted that her Honour had erred in basing her calculation of home help upon an allowance for twelve hours work per week. The appellant pointed out that the combined hours of the estimated work assistance of members of the respondent's family was no more than six or seven hours. However, when the figures which are contained in her Honour's judgment are analyzed, it is plain that her Honour based her calculations on the evidence. As to the pre-trial period, the amount allowed was divided into three periods. In the first (August to November 1982) her Honour allowed for 12 hours. In the second, when the daughter was at home, her Honour allowed 10 hours. In the third, after the daughter had left home, her Honour allowed 4 hours. These allowances cannot be criticized. As to the future, the sum allowed by her Honour represents 35 years at four hours per week multiplied by $10 a week for hired help. On the three per cent tables, this produces a figure of $45,516. From this sum she deducted 25%, producing the figure included in the judgment, viz. $34,137. The multiplier of 35 years was based upon the respondent's life expectancy of eighty years, proved by the evidence. the multiplier of four hours per week was certainly sustained by the evidence of members of the family already quoted. The sum of $10 per hour is supported by the letter, in evidence, from Dial-an-Angel. The discount allowed was realistic. We therefore see no reason to interfere in the allowance which Mathews J made for this component of the respondent's damage. On the contrary, her Honour appears properly to have applied the principles in Griffiths v Kirkemeyer. The allowance for future general damages shows error There is no reason to interfere with the allowance of $20,000 for past general damages having regard to all of the evidence, sufficient of which we have outlined above. But when it comes to the allowance of $50,000 for future general damages, we do believe that her Honour erred. Allowing that the assessment of general damages is not normative and that there are few aids to assist in determining error, we nevertheless believe that the sum of $50,000 provided by her Honour exceeds the bounds of a sound exercise of the quasi-discretionary judgment called for. The reasons for this conclusion emerge sufficiently from what has already been stated. The appellant's general health was described as good. Her life was not seriously disrupted by the injury, so long as she refrained from heavy duties at work or home. She did not complain of severe continuous pain. So long as she watched her movements and activities, the pain was described as a dull one, not intense. For that lack of movement and care in work and at home she has already been compensated by the allowances made by her Honour which these reasons have sustained. Her condition was one which might possibly have eventually manifested itself, even without the triggering effect of the injury for which the appellant was liable. We are inclined to think that the error which her Honour made was in failing to look again at the product of the various components by which she derived the final judgment. Inevitably, there was a degree of overlap between the allowances required for loss of earning capacity and for the need for home help (on the one hand) and the compensation for general disturbance of life and loss of the amenities (on the other). To some extent her Honour allowed for this overlap by providing a large discount of the amount provided for future home help. However, having provided a substantial sum for the former components of the judgment, it was appropriate to adjust the latter more significantly in order to URJ HAINES v HIGGINS (Kirby P, McHugh and Clarke JJA) 9 ensure against providing twice for the same features of the impact of the injury on the respondent. Here, we feel her Honour erred. The error requires the setting aside of the judgment which was entered. Re-assessment of damages As both parties have asked the Court to reassess, and as it is entirely appropriate to do so, we believe that the appropriate allowance for general damages as to the future is $25,000. There is no reason to adjust any of the other components of her Honour's judgment, save for the necessity to credit the respondent with the sum required by Fox v Wood. When then looked at as a whole, the resulting judgment is appropriate and correct. The one error which the Court has detected in what her Honour did can be removed by taking the course which we propose. The result is that there should be deducted from her Honour's judgment the sum of $25,000 but added a sum of $1,331 70. The orders which we accordingly make are: 1. Appeal allowed. 2. Judgment of Mathews J, dated 16 October 1987, set aside. 3. In lieu thereof, order that the appellant pay to the respondent the sum of $231,497.54. Credit to be given for any amount already paid. 4. The appellant to pay the respondent's costs of the trial. 5. The respondent to pay the appellant's costs of the appeal. Counsel for the Appellant: Mr D Cassidy, QC, and J Stewart Solicitors for the Appellant: Eleonora G Scarparo Counsel for the Respondent: RJ Burbridge, QC, and L Katz Solicitors for the Respondent: ER Stack and Sons