GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v GLYNIS SANDRA LAMPARD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, PRIESTLEY and MEAGHER JJA 7 November 1989, 7 November 1989 [1989] NSWCA 86 COMMON LAW — NEGLIGENCE — NO QUESTION OF PRINCIPLE ORDERS Appeal dismissed with costs. Meagher JA The present respondent, Mrs Lampard, whom I shall refer to as the plaintiff, was injured in an accident which took place on 11 October 1985. That accident, it is common ground, was caused by the driving of an offending vehicle for which the appellant, the Government Insurance Office of NSW is responsible. The only question in the present case relates to damages. Acomplicating fact is that in December 1984, less than a year before the motor car accident in question, the plaintiff had suffered a fall while she was roller-skating. There is also a fact which is not in dispute, that on 5 June 1987 the plaintiff underwent an operation to her spine which was a C6-7 hemilaminectomy and foraminotomy. The ultimate decision of his Honour Judge Neil in the District Court was in favour of the plaintiff against the defendant in the sum of $92,088.29. The appellant has submitted that this verdict is not sustainable. lam afraid that in my view his Honour was entitled to come to the conclusion which he did, despite the very thorough and able arguments to which we have been treated by Mr Shore on behalf of the Government Insurance Office. The first ground that was argued was his Honour erred in that finding that the injuries suffered in the skating accident in December 1984 was an injury to her right shoulder. What that really means was his Honour was in error in holding that any more than her right shoulder was injured. The fact of the matter is the plaintiff at all stages suffered from a degenerative spinal condition of which, at the time of the roller skating accident, she was unaware. The evidence does disclose that although his Honour said dogmatically that the only injury which she sustained in the roller skating accident was an injury to her right shoulder, that is probably not correct. Mr Shore has certainly convinced me that in addition to that injury there was involved in the roller skating accident an injury which aggravated her existing cervical condition. However, for reasons which will later emerge, I do not think that matters. The appellant then submitted that his Honour erred in finding that the symptoms consequent upon the skating accident had settled completely some two or three months before the motor vehicle collision. This ground to my mind is not made out. The balance of the plaintiff's own evidence was quite clear, namely, that her troubles from the skating accident had subsided two or three months before the motor car collision. It is true that her evidence is somewhat ambiguous, and on one occasion it would seem there is a statement to the contrary effect. But nonetheless that was the bulk of her evidence, and his Honour who actually observed the plaintiff giving evidence, found not only that she was a witness of truth but also she was a lady who tended to understate her own case. 2 UNREPORTED JUDGMENTS In those circumstances that evidence alone would justify in my view his Honour's finding. However, that evidence does not stand alone. The medical evidence supports that view also. For example Dr Giblin said on 19 February 1985 when he examined her - and this is only two months after the roller skating accident - she had a full range of cervical movement. On 9 April 1985, three months later, she said that her symptoms were settling; and there is other medical evidence to like effect. In those circumstances his Honour was not only entitled but in my view compelled on the balance of probabilities to find that she had become asymptomatic before the motor car accident. The next matter which was agitated before us was that the later symptoms from which she suffered and which led to the operation in June 1987 were not causally connected with the motor car accident, or at least had not been proved to be so. Again, in my view, this is not true. The matter is somewhat complicated by the fact that the medical evidence is not entirely consistent and a comparison of the various accounts from the doctors does raise problems of reconciliation. There was evidence in the form of reports from no less than seven doctors and in addition to that there were twenty pages of doctors' notes and reports from Liverpool Hospital. In these circumstances one cannot explore in minute detail the various points of difference which require reconciliation. This is all the more so when in the present case, unfortunately, though perhaps not in any blameworthy sense having regard to the practicalities, neither side saw fit either to call their own medical witnesses or to seek to cross-examine the other side's medical witnesses. That, however, being said, it is as clear as can be that Dr Rasanayakam was of the conclusion that all the symptoms from which the lady suffered and which led to the operation were attributable to the accident. Having recited the various disabilities from which the plaintiff suffered in her chest, right shoulder, right elbow, left foot and her neck, he expressed the view on 29 January 1986 that she had suffered an aggravation of the condition in her neck and her right shoulder and her present disabilities were due to the accident of 11 October 1985. Criticism has been made of that report by counsel for the appellant but no objection was taken to its admission, nor was the doctor sought for cross-examination. On 15 June 1988 the same doctor recited the view that she had injuries to her right neck, right shoulder, left foot. As a result of the motor vehicle accident the disabilities to the chest, right shoulder, the left foot had subsided, but she still had disabilities with the neck and further problems arising from surgery; and he expressed the view that part of the disability was due to the surgery and aggravation due to the motor vehicle accident. Dr Nalder, in a report dated 16 March 1988, again was seen to ascribe the plaintiff's disabilities which occurred after October 1985 to the effect of the motor car accident. Dr Segelov, who saw her in February 1987, expressed the opinion she had suffered a disc protrusion in her original fall but nonetheless seem to ascribe her later disabilities to the car accident, which he said had significantly aggravated the cervical spine problems. In those circumstances the question of causation seems to have been made out. All that evidence was capable of acceptance by his Honour, and his Honour did accept it. That is further evidenced, I think, by the fact that the medical evidence that her complaints after the roller skating accident had subsided by about June \WGROVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v GLYNIS SANDR& LAMPARD (Meagher JA) (Meagher JA) 1985 whereas since October 1985 there has been a long and continuous level of complaints about one injury or another. Add to that the fact that in early 1985 her cervical movements had been free and complete, whereas after the accident they were not. Add to that Dr Segelov had declined to consider surgery in relation to the pre-accident, and that adds further strength to the proposition that there was indeed a causation between her post-accident symptoms and surgery and the accident itself. Damages was also put in issue. General damages which is Honour found were in the sum of $45,000. That does not seem to me to be so excessive as to attract the intervention of this Court. The original accident itself must have been a quite severe one, as it involved three motor vehicles. The lady in question had a great deal of medical experience for three years which took place between the accident and the trial, involving various investigations and including surgery of the kind I have described. She took and has continued to take medication. She had been advised to purchase a specialist machine and probably will do so. She has had interference with her daily lifestyle and activities. She cannot do her housework properly. She has been disturbed by pain and had some depression. She has also had headaches and restricted movements. There is no sign that her disabilities will entirely abate and every probability she will have to live with them for the rest of her life which is quite extensive. True it is on her evidence her pain is not perpetually acute and is intermittent, but is very severe when it does come. Nonetheless in my view the figure is not outside the range which his Honour was capable of awarding. As far as her claim for loss of earning capacity is concerned, his Honour awarded a figure of $45,870. His Honour came to that conclusion in this way, namely, that for some years prior to the accident she had been taking laundry in for two people and making about $40 a week from it. From the accident to the date of the trial she had restricted the amount of laundry and she had only made $10 a week, in other words $30 less than she had been making. If one projected that $30 into in the future one would have to the figure of $13,712. His Honour took the view that that was too low because in addition to her having lost her capacity to take in laundry she had also lost her capacity to do many sorts of jobs: she had no particular skills and had been rendered in such a state that she could not do any heavy work or any work which involved lifting, certainly heavy objects, or even light objects if the lifting was above shoulder level: nor in the future would it look as though her condition would improve in this regard. In those circumstances his Honour took the view she would not be able to take employment, for example, as a shop assistant; there having been some evidence given that she had intended to do just that, particularly in circumstances where the family needed extra money because of her husband's health and their general inability to pay the family debts. In those circumstances his Honour calculated if she had gone into the workforce as an employee she would have earned $85,700 but he discounted that very heavily, namely by fifty per cent, in order to get the figure of $45,870. I think he was entitled to do that, broadly speaking, because he was entitled to say "for the actual capacity she has lost I have regard to the larger figure, but I shall discount that heavily against the probability, which seems to me likely, that she would not fully have exercised that capacity", in other words she would have exercised that capacity in half measure. That does not seem to me to be an 4 UNREPORTED JUDGMENTS illogical way to deal with her economic loss and it seems to me to have been sensible and just. For those reasons I am of the view that the appeal should be dismissed with costs. Mahoney JA I agree. Mr Shore has taken every point which I think can be taken in the matter but the reasons given I do not think the appeal should succeed. Priestley JA I also agree. The order of the court is that the appeal is dismissed with costs. Counsel for Appellant: H Shore Solicitors for Appellant: Audrey Lee (Hurstville) Counsel for Respondent: JA McCarthy QC and AJ Reynolds Solicitors for Respondent: Messrs O'Reilly and Booth