MACKIE v THE NOMINAL DEFENDANT SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, MAHONEY and CLARKE JJA 27 April 1990, 27 April 1990 [1990] NSWCA 116 Clarke JA There are two appeals before the Court arising out of a judgment given by JudgeHerron in the District Court on Friday 11 November 1988. In that judgment his Honour dealt with two claims which were brought by Janiece Catherine Mackie whom I shall call "the plaintiff' for the sake of convenience. The first related to a claim for damages in respect of injuries that she received in a motor vehicle accident on 27 March 1984. In the case of that claim his Honour entered judgment for the plaintiff for $54,972. The second related to another claim arising out of a motor vehicle accident in which the unfortunate plaintiff was involved and this occurred on 2 February 1987. In that case his Honour awarded judgment for the plaintiff in the sum of $16,698.10. The plaintiff herself is the appellant in relation to the first claim. She contends that the damages awarded were inadequate. The respondent is the appellant in respect of the second judgment having somewhat belatedly, as a defensive measure, filed in this Court a notice of appeal asserting that the damages awarded in the second instance were excessive. During the hearing of the appeal counsel for the defendants, because both the defendants were represented by the same counsel, accepted that if the first appeal was dismissed he would not press the other appeal and he made it quite plain that the latter appeal was a defensive one. In the event I think that all I should say is that I am not persuaded that the damages awarded in respect of the second accident were excessive and I would be disposed to dismiss that appeal. The amount awarded was modest and even though it could not be said that the injuries were of great severity it does not seem to me that the amount was out of proportion to those injuries. I shall, therefore, be concerned to consider only the claim advanced by the appellant that his Honour made errors in assessing the damages as a consequence of which his award was inadequate. The first ground of appeal is that his Honour erred in failing to include within the damages an allowance for an operation which it would appear his Honour thought that the plaintiff would have and which would, to some extend, ease the pain she was suffering. Before turning to consider that ground I should briefly mention some background material. The plaintiff was born in 1952 and entered the workforce in 1967 shortly before her father died. She worked in various jobs until 1974 when she left her employment as a consequence of a back injury which she suffered in a fall at work. She did not, however, return to the workforce upon her substantial recovery from that injury. The reason for her non return to the workforce was that she was required to look after three brothers and sisters in the first instance and more latterly her own two children, the second of whom was born in 1978. However, by February 1984, she wished to return to the workforce and she applied for a 2 UNREPORTED JUDGMENTS position at Inghams Chickens. She also, apparently, applied for some other jobs but had been unsuccessful in obtaining employment by the tire of the first accident. In that accident she suffered an aggravation of her pre-existing lower back disability which caused problems in her right hip and leg. She also suffered from a cervical problem which Dr Beer thought, and his Honour seems to have accepted, would have cleared up by 1986. Her major injury, however, was significant and disturbing post traumatic temporomandibular joint subluxation. His Honour concluded that by the time of trial her complaints of headache and cervical problems were all in fact consequent upon the significant pain which she suffered on a regular basis from her jaw disability. In other words he seems to have approached his assessment upon the basis that the neck and back injuries had substantially recovered and that any disability that she suffered in those areas was consequent upon, or followed from, the significant pain in her jaw. In his judgment Judge Herron said this: "There does not seem however to be any doubt in my view that this lady from the time of this accident in 1984 has indeed suffered constant problems with the jaw and she has really suffered severe and persistent pain as a result of those problems. Indeed, it seems to me, as she acknowledged, that the jaw problem is her main problem and the headaches and neck problems if she has any actual neck problems really stem from the pain which she is experiencing in the side of her face, if I can use that expression." It is in that context that his Honour came to consider the issue of general damages having also directed some attention to evidence as to possible amelioration of her pain by operative treatment. The plaintiff had consulted Dr Marshall and Dr Norman, who were both oral and facio maxillary surgeons, who expressed opinions concerning operative treatment which they thought may possibly bring about an improvement in the plaintiff's condition. In the ultimate his Honour appears to have preferred the approach advocated by Dr Norman. In dealing with the problem his Honour said this: "Dr Norman himself is of the view that the plaintiff should as I understand it undergo an operation which he describes in his report of 17 August 1988. It occurs under the heading 'Recommended treatment for the post traumatic jaw joint dysfunction (e)'. The operation would appear to be rather complicated although it must be regarded as somewhat conservative by the surgeons. If it was undertaken it would cost in money terms something in the region of $7,000 at least and that would not take into account problems which she would have physically not only during the course of the operation but during its aftermath." Reference to that passage indicates very clearly that, when delivering judgment, his Honour had in mind the possibility of operative treatment costing in the region of $7,000. When his Honour camer however, to deal with general damages he returned to the topic of operative treatment. At that time his Honour had this to say: "Dr Norman has suggested this operation to which I have referred but there is of course no guarantee that she will be relieved of these problems which she now has although I take it that Dr Norman would not be recommending this operation unless there was a real chance of the situation being remedied. The problem is of course that the operation has not been performed. It is a pity that it was not and Tam just not in a position nor would Dr Norman be in a position to really indicate URJ MACKIE v THE NOMINAL DEFENDANT (Clarke JA) 3 what its real effects would be. Nevertheless I would have to take into account that there is a good chance of that operation remedying her present parlous situation which I see she has." It is apparent from the latter passage that his Honour felt obliged in the light of the evidence in the case to assess general damages upon the basis that the plaintiff would probably have the operation advocated by Dr Norman and that there was a good chance that that operation would improve her present situation, that is, that it would bring about a significant improvement in her condition and a lessening of the pain she was suffering. If that is right, as I think it is, his Honour must have assessed the damages for the future upon the basis that the plaintiff's pain would probably be significantly eased for the years following the hearing or at least that there was a good chance that the pain would be eased. Such a view was quite appropriate in the circumstances of the case but necessitated his Honour allowing at least the cost of the operative treatment which would give rise to this good chance of improvement. A reading of his Honour's iudgment would suggest that he did not do that. Certainly he did not do it expressly and, in addition, it would seem from his statement that he was including the economic loss component in the general damages that he had not increased the general damages to take account of the operation. To have done so would have been unconventional but would, as it seems to me, have been quite permissible. Thus, I would conclude that there is an apparent error in the award insofar as his Honour has failed to take account of the cost of the operation and probably also failed to award any sum to compensate the plaintiff for incapacity during and after the time of the operation and for the pain and discomfort which she would suffer in the operation itself. I will, however, put that to one side for the moment and turn to the other challenge which, although separated as between the past and present, concerns the award of general damages. What was said in this respect was that, although it may have been in order to include a loss of earning capacity component in the general damages, the amount actually awarded for general damages disclosed there had been a failure properly to reflect the actual finding which his Honour made which, it was said, was of partial incapacity. What his Honour said was that so for as loss of income capacity was concerned he thought all he could do was to include in the general damages an amount which would reflect a loss in this direction. He added that he did not think that the plaintiff would be prevented from carrying on all forms of employment, despite the fact that it was difficult for her with the constant problem in relation to her jaw. His Honour then noted that he had been advised that she could expect, if employed, to receive at least $200 per week and observed that he thought that was a conservative estimate. He then allowed the sum of $45,000 for general damages which, as I have indicated, included the economic loss component. It was said that the evidence in the case revealed a partial incapacity which called for a much greater award of damages if there was included within the general damages a component for the loss of earning capacity and that his Honour's failure to recognise this demonstrated error. The submission depends essentially upon a construction of his Honour's judgment which leads one to the view that he concluded she had suffered a partial loss of capacity. I am not sure that is a correct view. My tentative impression is that his Honour was indicating that he did not accept that there had been shown any actual loss of capacity but that there may in the future be times when the 4 UNREPORTED JUDGMENTS plaintiff would suffer income loss as a consequence of the disabilities flowing from her injury or treatment which she needed to undergo to alleviate the pain. Whichever view of his Honour's iudgment is the correct one seems to me not to matter very much. If his Honour was intending to suggest that there had been a partial loss of capacity there still was the task of the measurement of that partial loss of capacity. If it had been a significant loss then the award would necessarily be greater than if it had been a minor loss. There is nothing in his Honour's judgment to suggest that he thought the loss was significant and, accordingly, his allowance for loss of earning capacity both past and future could have been of very small order. In these circumstances I do not think that the appellant has demonstrated that his Honour erred in failing to assess loss of earning capacity upon the basis of a weekly loss of $50 or more. Indeed, speaking for myself, I tend to think that would have been a mistaken approach in the light of his Honour's actual findings. Notwithstanding the Court is left in a position where we know that his Honour has assessed the general damages upon the basis that there could be significant improvement in the future as a result of an operation, the cost of which was not allowed. The question which now arises is - how best to correct the error into which his Honour fell? One approach might be simply to award the cost of the operative treatment. That would not, however, in my opinion do justice between the parties. It would fail completely to make an allowance for any actual incapacity following the operative treatment and for the pain and suffering involved in the operation. It would also fail to take account of a not unimportant aspect of the case, that is, the depression which the plaintiff suffered as a result of the serious and continuing pain which she suffered in her jaw. Again if she had the operation the result may not be satisfactory. In other words, there may be no improvement at all. Alternatively, there might be significant improvement in her pain but her depression might continue for quite a long period of time. There are undoubtedly many imponderables and the Court is faced with a situation where nothing concrete can be said. One is dealing with chances of improvement and the effect any improvement might have on her secondary disabilities, if I can use that expression. Having regard to all those factors it would seem to me that the appropriate manner of dealing with the error is to reassess the general damages. Accordingly, that is what I would propose should be done and upon the reassessment I would award a sum of $60,000 for general damages, that is an increase of $15,000 upon his Honour's verdict. In doing that, and because of the fact that the error lay in dealing with the future, I would not disagree with his Honour's view that it was appropriate to award $20,000 in respect of past pain and suffering and to take an award of $40,000 in respect of the future. In accordance with this view the damages would be as follows: Agreed out of pockets $9,972.00 Past general damages (including loss of earning $20,000.00 capacity) Interest on award of damages for the past $6,750.10 Future general damages including allowance for the $40,000,00 operation and the consequential allowances $76,722.10 URJ MACKIE v THE NOMINAL DEFENDANT (Mahoney JA) 5 I would direct that the judgment take effect from 11 November 1988. I would order that the respondent pay the appellant's costs of the appeal and of the action below. Accordingly, in my opinion, the appeal should be allowed, the judgment below in action No 8318 of 1984 should be set aside. In lieu thereof there should be judgment in favour of the plaintiff in the sum of $76,722.10. The respondent defendant should be ordered to pay the plaintiff's costs of the action at first instance and the plaintiff's costs of the appeal. The judgment which I have directed should take effect from 11 November 1988. In matter No 157 of 1987 I order that the appeal be dismissed with costs. Kirby P I agree. Mahoney JA I also agree. The orders of the Court, accordingly, are as Mr Justice Clarke has provided. To the orders that Mr Justice Clarke previously pronounced in the first appeal the Court will add the order - if so qualified the respondent is to have a certificate under the Suitors Fund Act 1951. Liberty to either party to apply upon two days notice to the other. Counsel for the Appellant: R McLoughlin Solicitors for the Appellant: Kencalo and Rimes Counsel for the Respondent: J Crumpton QC and S Fonti Solicitors for the Respondent: G Leeds