MAIORANA v ZAMMIT SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, SAMUELS and CLARKE JJA 29 February 1988 [1988] NSWCA 88 DAMAGES — excessive — no question of principle Orders The judgment below should be set aside and in place of that judgment there should be directed the entry of judgment in favour of the respondent in the sum of $39,520.75 to date from the time of the trial. The respondent should pay the appellant's costs of the appeal. Clarke JA This appeal concerns a judgment for $54,520.75 which Judge Lloyd-Jones directed on 2 March 1987 be entered in favour of the respondent. The judgment was constituted of general damages in the sum of $90,000, interest on the past general damages of $20,000 which totalled $4,000, past wages loss amounting to $445.70 and out-of-pocket expenses $75.00. The appellant challenges the allowance of $50,000 general damages and the consequential award of interest on past general damages. He contends that the general damages awarded to the respondent are wholly erroneous. The respondent, who was born in Malta on 28 April 1946, in 1984 lived with her husband and her son, Martin, who was born on 5 August 1971, and worked at Rozelle psychiatric Hospital as a roster clerk. On 10 March 1984 her son left home on a bicycle and was soon after struck by a vehicle which had been stolen by the appellant and as a consequence he received very serious injuries. A neighbour came to the respondent's home and told her that her son was under a car. She ran to the scene. Initially she thought that her son was dead, being confronted with the sight of blood and portion of a bicycle under the motor vehicle which had been involved in the collision. The respondent's son suffered severe burn injuries over the upper legs and feet and in addition other significant injuries. He was, at the time the respondent arrived at the scene, conscious and suffering greatly. He was taken from the scene of the accident to hospital and remained there for about six and a half weeks during which time his mother visited him and stayed with him all her available waking hours. In the early stages she took two weeks leave from her work during which time she was with him all day. After he was discharged from hospital the respondent cared for him at home for some months. She became significantly anxious as a consequence of these events, and her claim for damages was to recover compensation for the nervous shock which she alleges she sustained. On 12 March 1984 she attended on her long-standing general practitioner, Dr Hilda Damato, who noted that she appeared upset when she was talking about her son's accident and was complaining of tension headaches. Dr Damato gave her a medical certificate on which she had written a diagnosis of acute anxiety state. On 19 March the respondent returned to Dr Damato complaining of severe frontal headaches, vomiting and diarrhoea. On 22 June 1984 she again saw the doctor, complaining of insomnia, dizzy spells, nervousness, weight loss and lower back aches with pains down both legs. 2 UNREPORTED JUDGMENTS Her next visit to the doctor was on 19 November 1984 when she said that she was still very tense and had been troubled with excessive weight loss and abdominal discomfort. On 28 November 1984 her appetite had improved but she was still suffering from frequent headaches, dizziness and bad dreams at night. On 8 January she was referred to a physician who could find no neurological abnormality and diagnosed an anxiety condition. On 10 March 1986 Dr. Damato saw her again and the relevant portion of her report reads: "Mrs Zammit claims that she had never been in such an emotional state before her son's accident. She used to be happy and relaxed before; now she has been even troubled with intermittent insomnia, fatigue, tension headaches and 'nervous fits' when she gets very agitated and upset and starts crying for no reason at all." I interpolate at this stage that on 19 November 1984 Dr Damato prescribed Frisium which she continued to take until the time of the trial. The learned trial judge had the benefit of reports from Dr Rod Milton, a psychiatrist, and oral evidence from the same doctor, whose assessment Judge Lloyd-Jones accepted as substantially accurate. In his first report dated 31 October 1985, Dr Milton summed up the respondent's condition as follows: "Mrs Zammit's presentation and her and her husband's account indicate her to be an orderly even obsessional, person. She has worked in one job for nearly 20 years, decided to have only one child so that she could give it adequate attention and financial support and always had a most tidy and orderly home. Persons of this nature are markedly affected by events which upset their carefully planned and balanced existence. Moreover, the scene was frightening and shocking in its own right and the effect was made worse by the fact that the driver of the car was apparently a criminal being pursued by the police. Martin is her only child and greatly cherished. She shows a moderately severe post traumatic stress reaction characterised by mixture of anxiety and depression including: loss of interest, depressed effect, reduced libido, poor concentration, social withdrawal, recurrent dreams and intrusive memories of the accident, anorexia and weight loss, jumpiness, and altered sleep. On Sth August 1986 he reported that she had improved since he last saw her although she continued to show some features of the post traumatic stress reaction previously described. In oral evidence Dr Milton said that he believed her symptoms would diminish over a period of about 5 years by which time she should have substantially recovered. The respondent herself said that before the accident she was in good robust health. She now gets hot flushes and her legs feel like jelly if she misses the Frisium which she takes daily a a cost of $14 for fifty days. She used to be outgoing and happy and now she is far less so. She has lost interest in cooking for friends and entertainment in the home. She still is bothered by sleep problems and accident situations which might appear on the television screen from time to time. She is understandably nervous in a car and continues to suffer from bad dreams. The appellant's counsel submits that the award of $50,000 is outside the range of damages which could properly have been awarded. In particular the appellant submits that the award failed to take account of the fact that there were no physical injuries and that this was, as he put it, simply a case of a shock induced anxiety state. He relied on the evidence of the improvement in the respondent's URJ MAIORANA v ZAMMIT (Clarke JA) 3 symptomology continuing until the date of trial and her early return to fairly normal activities. He pointed to Dr Milton's statement in August 1986 that apart from sweaty palms and altered deep tendon reflexes the respondent exhibited no physical signs of anxiety. Counsel emphasised that she had returned to work two weeks after the accident and continued in her usual employment without any further absence from work and observed that what he described as her relatively mild symptoms were well controlled by medication. In relation to that part of the award which concerned the future he submitted that the element allowed in respect of the continuing medication for 5 years was really de minimus and that the figure of $30,000 represented in substance the anxiety and depression which would probably continue for about 5 years from the date of trial. Counsel submitted that this allowance was far too high, given that the respondent had recovered to a significant degree by the time of the trial, had continued at work since an early return and was not likely to lose any time from work in the future as a consequence of any anxiety. Furthermore, emphasis was placed on the evidence which was accepted by his Honour which demonstrated a gradual abatement of symptomology so that during the five years with which the future was concerned the respondent was likely to suffer far less than she has for the three years prior to the trial for which $20,000 was awarded. The respondent's counsel responded by referring to the fact that during the lengthy period which Dr Damato treated the respondent prior to March 1984 she did not exhibit any anxiety neurosis of any kind and that she had suffered a moderately severe post traumatic stress reaction which would continue in all for about 8 years. He observed that her first knowledge of the accident was information from a neighbour and when she first saw her son she believed he was dead and then saw him in a very bad state. Counsel relied also upon the fact that the trial judge appeared to have accepted the respondent's case entirely. I accept that the evidence demonstrated that the respondent has suffered from a significant nervous reaction which entitled her to moderate damages. However, it would appear correct to say she lost no more than two weeks from her employment and even during that period she was spending her time with her son at the hospital. She has not lost time from work since then and has received treatment only from her general practitioner at increasing intervals since a period of fairly consistent treatment in the early months. I do not mean to suggest that she has not suffered, and probably to a moderately severe degree at times, but I emphasise these matters only to indicate my opinion that the assessment was too high and should be set aside. I am not persuaded that the award of $20,000 which represented damages for the past was excessive, and I would not be disposed to interfere with that award. However, it seems to me that the figure of $30,000 for the future exceeded reasonable compensation by such a great extent as to require that it be set aside. In my opinion it follows that his Honour erred in awarding $50,000 and his judgment should be set aside. Both parties have joined in asking this Court to reassess the damages, should the Court reach the conclusion that the verdict is too high. There are some difficulties involved in reassessment as the Court has not seen the respondent, but I do not believe these difficulties are of such weight as to justify the Court denying the wishes of both parties. I say this particularly as it is clear that his 4 UNREPORTED JUDGMENTS Honour accepted the evidence of the respondent and the difficulties are perhaps not as great as they would be in the case of conflicting evidence. Having regard to all these matters which I have set out earlier in this judgment Ihave come to the conclusion that an appropriate figure for the future, that is, the five years from the date of trial, during which the respondent will continue to suffer from recurrent problems, is a figure of $15,000. ORDER Consequently, in my opinion, the judgment below should be set aside and in place of that judgment there should be directed the entry of judgment in favour of the respondent in the sum of $39,520.75 to date from the time of the trial. In my opinion the respondent should be ordered to pay the appellant's costs of the appeal. Kirby P I agree. Samuels JA I agree also. KIRBY P: The orders of the Court accordingly are as Clarke JA has stated. It necessarily follows that the costs of the trial will be paid as Judge Lloyd-Jones provided at the time of the trial.