GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v STACEY COLLINGWOOD BY HER NEXT FRIEND HELEN COLLINGWOOD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS, PRIESTLEY and MEAGHER JJ 14 May 1990, 14 May 1990 [1990] NSWCA 69 DAMAGES — quantum — no question of principle. Samuels JA The plaintiff in this action, heard by Judge McDevitt on 5 September 1988, was born on 26 September 1972 and was almost fourteen when, on 5 July 1986 she sustained injuries in a motor car accident, and was almost sixteen at the date of the trial. She was riding in the rear of a van of some kind which got out of control and turned over several times on a country road with the result that the plaintiff was flung about in the rear of the van. She sustained what was certainly severe bruising to her spine and injuries to the face and eye which were fortunately of little importance and need not be further noticed. There was some question at the trial whether she had become aware of symptoms in her back immediately after the accident or whether they had not manifested themselves until some four months had elapsed. She said that she was aware of them immediately after the accident but, believing that they would disappear, did not report them to her mother or seek any medical assistance. The learned judge found the plaintiff to be entirely reliable and indeed inclined, if anything, to minimise her symptoms. He assessed her damages in the sum of $60,481.60 which is made up of $60,000 for what were described as general damages, that is damages for pain and suffering, loss of amenities and so forth, the balance being in respect of an agreed amount of out of pocket expenses. The defendant appealed substantially on the ground that the award of $60,000 was manifestly excessive, and sought also to invoke various alleged errors in the learned judge's reasoning and the absence of evidentiary material for certain of his conclusions. The case is, to my mind, by no means an easy one. It is distinguished, if that is the right word, by two elements which I hope are not generally repeated. First, it is difficult to understand why a claim for damages on behalf of a child was brought on many years before the limitation period appeared on the horizon and at a time when it was by no means certain that the extent of the injuries, which were certainly occasioned in the accident, had been ascertained. Furthermore, the medical evidence was sparse in the extreme. The learned judge was well aware, as he said, of the difficulties which the lack of medical guidance presented for him. The medical evidence was to this effect: Four months after the accident the plaintiff consulted the family's doctor, as I assume, Dr Beard. He found that she was normal on examination but x-rays indicated a spinal scoliosis and some narrowing of the L3/4 disc space. The x-ray report suggested to him a genuine problem which may have been caused or exacerbated by the accident. He found 2 UNREPORTED JUDGMENTS there was no clinical suggestion of a disc injury but added: "Although this could not be excluded" and went on to observe that the history and presentation "were typical of a lumbar back sprain". He last saw her on 10 November 1986 which is some twenty two months before the date of the trial. However, he did refer her for physiotherapy to a Mr Kemp who saw her on ten occasions during the eighteen months before 29 February 1988, the date of his report. He confirmed the radiological findings of scoliosis and some narrowing of the lumbar disc space. However, on examination she seemed to have a full range of pain-free movement but did complain of spinal pain which recurred from time to time. The plaintiff's solicitors referred her to a Mr Reed, a specialist surgeon, and he also found the scoliosis and the narrowing of the disc space. The history to him was that the plaintiff continued to get intermittent pain, particularly after prolonged exercise. She presented normally with a full range of movement and no neurological signs. Specifically, there was no indication of clinical disc injury to the spine, which I have taken to mean that there was no clinical evidence of disc injury. His conclusion was that she suffered severe jolting in the accident and his prognosis was that she would progress to a full and complete recovery; and I should add that that was, in substance, the view of Dr Beard also. The defendant referred the plaintiff to a Dr Anderson, an orthopaedic surgeon in Brisbane and he found radiological evidence of a spinal anomaly, namely six mobile lumbar vertebrae and, on clinical examination, a marked lumbar lordosis. No evidence was led to explain the significance of the mobile lumbar vertebrae or the cause or significance of the lumbar lordosis or, indeed, of the scoliosis. The learned judge was really left to eke out the evidence, such as it was, with his own conjectures upon these points. I suppose one is allowed to add one's own conjectures, culled from some experience of these cases, to the effect that the scoliosis and the mobile lumbar vertebrae are probably congenital anomalies which are vulnerable to aggravation as a result of a trauma such as that which the plaintiff sustained here. Her own evidence however, did not suggest that her condition was going to settle with time. In summary, it was that the pain was becoming more constant and she took pain-killing tablets to alleviate it. She said that in the first few weeks she did not think there was anything really wrong with her back but now the pain was "more constant like aching". It was not there all the time but sporting activities and exercise brought it on, and I infer from what she said and from the judge's findings that the pain was quite considerable. It appeared about three times a week following the normally active life of a young girl of sixteen. She specifically denied that her back was getting better or had improved over the two years preceding the trial. The learned judge found that the evidence of the plaintiff was entirely acceptable and specifically that she had felt no improvement in her back for the preceding two years. He affirmed the lumbar lordosis and the mobile lumbar vertebrae but of course was unable to base any view on this medical evidence. He expressed the conclusion that prior to the accident she was pain-free and able to engage in active sports which were no longer open to her, and that that incapacity was a result of the accident. He mentioned that it was unfortunate that the plaintiffs legal advisers had not seen fit to explore Dr Beard's suggestion of possible disc injury, a comment which I myself entirely endorse, and he added "because there is just no evidence \WROQVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v_ STACEY COLLINGWOOD BY HER NEXT FRIEND HELEN COLLINGWOOD (Meagher JA) of estimated duration of her discomfort on the available evidence". He thought that she had been very seriously disadvantaged and was precluded from the life of a normal teenager. On the probabilities, and bearing in mind that her symptoms had persisted for two years, he thought that they would continue to persist for what he called "an indefinite period" and he described them as "fairly debilitating". He again expressed his concern at the responsibility of having to assess damages with such a small degree of evidentiary assistance and saying The possibility of permanent incapacity has not been excluded", he went on, "However I think that an award of $60,000 for general damages is proper in all the circumstances." I must confess that my first response to the matter, having read the appeal book and the written submissions, was that on the evidence the amount of $60,000 was excessive but that it might be a great injustice to the plaintiff to set it aside; bearing in mind that the latest medical report dealt with circumstances which were a year old at the time of the trial, and considering also that the plaintiff, a manifestly truthful witness in the judge's view, complained that her symptoms were showing no signs of improvement. However, the evidence upon further analysis reveals that the judge had before him a continuation of symptoms and he had, in Dr Beard's evidence, some foundation for the conclusion that there was a possibility of disc injury. That does not amount to permanent incapacity, of course, but I agree with what Priestley JA said during argument that the way in which the judge expresses himself suggests to me that he did not include an allowance for permanent incapacity in the award. So he awarded the sum for fairly debilitating pain which seriously curtailed this young girl's activity and which might continue for, I suppose, a significant period of years; and for the possibility that she had a disc injury which, I suppose I am entitled to know, might therefore entail surgery or other serious medical interference. In all the circumstances, although I confess to some doubt, I am not prepared to conclude that the assessment was an wholly erroneous estimate of the extent of the plaintiff's injuries and their consequence. Accordingly, it is my judgment the appeal should be dismissed with costs. Priestley JA I agree with the analysis of the medical evidence and the view ofthe evidence of the plaintiff and her mother implicit in what has been said by Samuels JA. On that footing and on the footing that the trial judge accepted the plaintiff as an honest witness who was not exaggerating her symptoms, it does not seem to me the appellant has shown any of the matters necessary to show in order to persuade this Court to interfere with the assessment of the trial judge. I agree that the appeal should be dismissed with costs. Meagher JA I agree with Samuels JA. The orders of the Court therefore are that the appeal is dismissed with costs. Counsel for the Appellant: G Petty Solicitors for the Appellant: Robert Gilroy, Newcastle Counsel for the Respondent: CP Crittle Solicitors for the Respondent: Paul Sheridan, Newcastle