THE GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v SOUTHALL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS JA, KIRBY P and CLARKE JA 7 February 1989, 7 February 1989 [1989] NSWCA 87 DAMAGES — quantum — no question of principle Samuels JA On 2 December 1985 the respondent, the plaintiff in the trial before McGuire DCJ, was hurt in a motor vehicle accident in which she sustained a whiplash injury and soft tissue damage to the area of the cervical spine. She developed a psychiatric response to the incident and its consequences which manifested itself in depression, extreme irritability and a phobic reaction to travelling in motor vehicles. The learned judge, who accepted the respondent as a truthful witness who did not exaggerate her condition, awarded her damages for pain, suffering, loss of amenities and the like in the sum of $18,000 as to the past and $28,000 for the future. The trial, I interpolate, took place on 10 November 1987, round about two years after the accident occurred. The defendant appeals, contending that that award of damages was excessive and represents an entirely erroneous estimate of the injuries and their consequences. Counsel has relied particularly upon passages in the transcript which undoubtedly, from the respondent's own evidence, concede that, as at the date of trial, she was, as she herself put it, "a lot better" than she had been immediately after the accident. Accordingly there is evidence of improvement but the problem is to assess its extent. In particular the respondent was undergoing some form of psychotherapy or counselling which she found helpful and which enabled her to disclose her symptoms to a sympathetic hearer. The learned judge of course had not only to value the detriments which the respondent carried on to her trial but to evaluate the future, and in order to do so had to make some sort of assessment of the extent to which she might improve further. He ultimately concluded that the respondent, if she continued to undergo treatment for which he allowed in the assessment, would gradually improve, but felt that her problems would not totally resolve for quite some years to come. In my view this conclusion and this prognosis was supported by the evidence. I do not wish to diminish the cogency of so much of the respondent's testimony as concedes improvement, but on the other hand there is much evidence which indicates that, granting improvement, the condition with which she presented at the trial was a reasonably severe one and that her complaints were by no means insignificant. For example she still had difficulties in sleeping. Although at one time she had very frequent headaches she still had them two to three times a week, the improvement representing a comparison between that and every day. She still had pain and discomfort in her shoulder and in her neck. She said as far as her neck was concerned that it still hurt, mainly when it was cold or if she was doing something. I take it she meant by that if she was using her arms, lifting or ironing. 2 UNREPORTED JUDGMENTS She added that the neck was still very stiff and if she raised it upwards "that hurts, that really hurts". So far as the orthopaedic future is concerned there was medical evidence which his Honour was entirely able to accept and which I would have thought he did accept, to the effect that "this patient is quite severely disabled". So the orthopaedic injuries were, as I have said, not insignificant. So far as the psychiatric condition was concerned this had been, I would judge, quite a problem and, in particular, its manifestation in extreme irritability with her family which, she said, had imperilled her marriage and driven at least two of her children away from home. When she was asked about this she said that she was still irritable "cranky" was the word she used - and she spoke of having told her husband to leave her because of her emotional conduct, and expressed gratitude that he was obviously a man of equable temperament who was, of course, very fond of her as I do not doubt she also is of him, despite the difficulties which the injuries have imposed. Finally she was, at the trial, still unable to travel in a motor vehicle and that is, I would suppose, quite a considerable difficulty which I think cannot be diminished. All in all, although in my view the award of damages was an extremely generous one, I do not think, in view of the evidence, which is capable of supporting it, that it is so large as to require the intervention of this Court. Accordingly in my opinion the appeal should be dismissed with costs. Kirby P I agree. Despite the attractive argument advanced to the Court by Mr Bell, the passages of the evidence to which the Court was taken today by Mr Black lead me to the same conclusion in respect of future general damages. The amount in the judgment for that component is very high. It is higher than I would myself have awarded on the evidence. But it is not so high as to authorise the intervention of this Court. I agree with the order proposed. Clarke JA I also agree. KIRBY P: The order of the Court is appeal dismissed with costs. Counsel for appellant: Mr Bell Solicitors for appellant: J Mulder (Hurstville) Counsels for respondent: Mr J W Black QC and Mr R M Sweet Solicitors for respondent: Kell Heard and McEwan (Wollongong)