STELTER v THE PRINCE HENRY HOSPITAL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, PRIESTLEY JJA and Hope AJA 6 February 1991, 6 February 1991 [1991] NSWCA 261 DAMAGES — nurse's sciatic nerve damaged by admitted negligence of hospital — severe effect on life of plaintiff, aged thirtyseven at time of injury — trial judge's reasons show significant under compensation for "pain and suffering, scarring and loss of the enjoyment of life' — all other aspects of damages adequately assessed — overall effect of under assessment of "pain and suffering etc" sufficient to require reassessment amount of judgment increased. Priestley JA Mrs Stelter, the appellant, was working for the Prince Henry Hospital as a nursing sister in 1984 when, because of a mishap during her work it became necessary for her to be vaccinated by the hospital's staff clinic against hepatitis B. This was done by two injections, separated by about a month, to her right buttock. The second of these, on 17 April 1984, was wrongly placed and had the effect of damaging the sciatic nerve. At the end of 1984 she began proceedings against the hospital for damages for the negligent administration of the injection. The hospital admitted liability. Her case was heard by Holland AJ over three days in June 1989 and he delivered judgment on 3 July 1989 in the sum of $121,990. From his reasons for judgment it appeared that the components of this sum were: "1. Out of pocket expenses 845.64 2. Past Economic Loss 8,257.45 3. Interest on Past Economic Loss 2,687.00 4. Future Economic Loss 88,000.00 5. Future Medical Expenses 4,000.00 6. General Damages 15,000.00 7. Interest on Past General Damages 3,200.00 121,990.09" Later in his reasons the trial judge made it clear that under item 6 he was in fact dealing with pain and suffering, scarring of the body and loss of enjoyment of life. Mrs Stelter appealed against this award on the ground of inadequacy. The appeal focused on item 6. It was submitted that on the evidence, a great deal of which was unchallenged, if not all, and in view of the trial judge's acceptance of the appellant as truthful, the figure for item 6 should have been in a $40,000 to $60,000 range. The difference between that and the $15,000 allowed for this component by the trial judge was sufficient to demonstrate that the total judgment amount was, to adopt the test advanced by counsel for the appellant, "so much out of all reasonable proportion to the facts proved in evidence that the award should not be allowed to stand" (re Gilbert (1946) 63 WN (NSW) 176 at 179). 2 UNREPORTED JUDGMENTS For the hospital, the broad reply to the appellant's argument was that the judgment amount, as a whole, was either reasonable and proper, or certainly not so much a departure from the reasonable and proper as to be interfered with. Further in support of this approach, it was said that if the award for general damages was low it was compensated for by the economic loss components having been too generously estimated by the trial judge. To make good this general submission counsel for the respondent criticised the trial judge's calculations under items 2 and 4. In regard to those submissions the trial judge's factual findings may be summarised in the following way. In his reasons the trial judge gave a meticulous account both of what the damaging injection did in medical terms and of its effect upon the appellant's working and personal life. Apart from one or two matters which are to be mentioned later, there was not any serious challenge to the trial judge's account of these matters so it will be sufficient to adopt the findings hearrived at after his examination of the evidence without narrating all the details again. The appellant was born in 1946. She worked as a registered nursing sister until her marriage in 1971. She married a medical practitioner, a fact with which counsel for the hospital has sought to emphasise in the course of his submissions. She left work in 1972 to have her first child. In all, she had three children, whose ages, at the time of the trial, were 17, 14 and 11. In 1984 she returned to nursing, working four hours a day, five days a week. Because her daily work began at six in the morning she and her husband were able to manage by having the husband see to sending the children to school and the appellant's returning home during the morning to attend to the requirements of the household and look after the children when they later got home from school. The trial judge formed the opinion that the reason for Mrs Stelter returning to nursing work was twofold. One reason was her wish to do the work, which she enjoyed. The other was her earnings were very welcome for the overall financial needs of the family. Money was, as the appellant said, tight, one factor being a sizeable mortgage on the family home. The trial judge thought that even if the total money coming into the home becamefully adequate for the family's needs, without the appellant's contribution, she would still have been likely to use her own earning capacity both because of her interest in the work itself and the satisfaction she gained in having an outside job to do in her own right. The trial judge's finding was that it was probable that if the appellant did not suffer the injury she would have been back at full time nursing within a few years from the time of the trial, as early as she could manage in view of the ages of her children. These findings were relevant to the economic consequences to the appellant of her injury. The effect upon her daily enjoyment of life in all its aspects is best summarised by setting out her own description of her symptoms as they were at t he time of trial, which were explicitly adopted by the trial judge in his reasons: "Q. What symptoms do you now have in your right buttock and your right buttock and your right leg following this injury? A. At the present time? Q. Yes. A. I still have a lot of trouble with muscle spasm in the leg. I have a burning sensation down the calf and in the buttock for a lot of the time. If I walk quickly or walk upstairs or walk up the hill or do anything where I use the muscles of that leg more than just normally, then it brings on pain and muscle spasm. I have transient numbness of the toes. Driving a car, the movements necessary to operate the accelerator and the brake bring on a cramping sensation in the leg. I URJ STELTER v THE PRINCE HENRY HOSPITAL (Priestley JA) 3 am restricted in bending. I don't have a full range of movement to bend down. At times it is aggravated by doing a lot of bending or squatting which does tend to bring on the pain, also at times just walking normally I have a sudden sharp pain down the leg, which brings me to a standstill. Q. Are the problems you have just described things that fluctuate in terms of intensity of the discomfort? A. Yes, yes. Q. What makes the difference? A. As I have said, if I am doing a lot of bending or stretching of the muscle or if I am having to use the muscle a lot more, for instance walking up a hill or walking up stairs, to walk quickly, to run, anything that increases the use of the muscle brings on an increase in the level of pain. Q. Does the discomfort that activity causes you affect what type of things you do and you do not do? A. Yes, I restrict myself to - you try and adapt your movements to do something that is not going to cause you pain, yes. Q. Are there days when you are pain free? A. No, never totally." The foregoing passage describes the appellant's situation at the time of trial in mid 1989. She had had an operation in 1988 intended to remove or alleviate thephysical cause at or near the site of the sciatic nerve which was responsible for her symptoms. In the period from the injury until the operation her symptoms had been of the same kind as those described in the above passage. The severity of them can, to some extent, be gauged by the fact that following the operation there was, after a short time, a considerable relief of the symptoms with their again becoming more severe not long before the trial. Stated very briefly, the position following the injury had been that the appellant underwent long courses of non operative treatment and physiotherapy but she always found that when she began to increase her activity the severity of the symptoms increased. This led to considerable curtailment of her activities. One of those which was of particular importance to her and which she had to forego altogether was running, which she had done on pretty much a daily basis. In addition to these matters, and to what she described in the above passage, one consequence of the operation was an unsightly scar on her buttock. In evidence she said that she felt rather embarrassed about it and that she felt it was not a pretty sight. The judge accepted her on this in the same way as he accepted all her evidence. As well as accepting the appellant's description of her symptoms at the time of trial, the trial judge noted there was a consensus of the medical evidence before him concerning the future, which he summarised as follows: "She will always have some pain or discomfort in her right buttock and leg; this will be made worse by the physical activity that involves much bending, lifting, standing or walking; she is partially disabled by these conditions in that some occupations she should avoid altogether and others undertake only if she can restrict the hours of work or set her own pace; that these would include some forms of nursing that she could do for only about half the normal working hours but with general nursing she could not cope; she would probably be better off to forget about pursuing nursing for a career and find a different sort of occupation, one not physically demanding. As to physiotherapy in the future, the preponderance of evidence favours the view that a further period of such treatment is warranted of not less than five months and, perhaps more than a year from now." When the trial judge came to deal with item 6, which he summarised under the heading earlier mentioned, "pain and suffering, scarring of the body and loss of enjoyment of life" he said: 4 UNREPORTED JUDGMENTS "The plaintiff has had a long period of pain and discomfort and, in spite of her submitting to an operation, faces the possibility of enduring continuing discomfort and restriction of physical activity for the rest of her life. Her enjoyment of life is diminished by her having had to give up family tennis, running and some yoga exercise. Her surgical scarring of the buttock is unattractive and permanent. Counsel for the defendant boldly suggested that it should be of little significance in the case of a 40 year old mother of three children, and could be concealed for swimming by a suitably cut swimming costume. I would not accept the view that women who have reached 40 or borne three children will have lost interest or pride in their personal appearance nor that they would find comfort in the thought that they could conceal their disfigurement by wearing unfashionable clothing, especially at a swimming pool or at the beach. Moreover, the plaintiff's evidence was that she had endeavoured unsuccessfully to find a cream and a swimming costume to conceal the scar. She did not seek to make a lot of the scarring of her buttock and was modest in her complaint at being scarred. I think it is not to be put aside as trifling. It was a reasonable and proper claim to be allowed some compensation for it in her damages." This summary does not seem to me to reflect fully all that the judge had earlier accepted about the facts on the appellant's version of the injury. In particular, in view of what the trial judge had earlier extracted as the consensus of medical opinion concerning the future, it seems to me to have been an understatement to say that she faced "the possibility of enduring continuing discomfort et cetera" for the rest of her life. Both on the appellant's own evidence and more particularly, on the basis of the medical evidence before the judge, it seems clear that the word should have been "probability" not "possibility". The earlier parts of his Honour's reasons on the subject matter of item 6 seem to me to be a more accurate statement of what was the appellant's position in regard to this head of damages. The position, as reflected in those findings seems to me to have required, in the case of a woman aged thirty-seven, as the appellant was at the time of the injury, a considerably greater allowance than the trial judge made. A submission made on the appellant's behalf that an appropriate figure would have been between $40,000 and $60,000 seems to me to be a reasonable one. In fact, as it struck me on reading through the material, it could almost be described as moderate. The difference between what seems to me to be an appropriate figure and the figure of $15,000 is in my view such as to show that, for some reason not apparent, and notwithstanding what if I may respectfully say so seems to me to be in every other respect a perceptive approach by his Honour, he did not fully appreciate the extent to which by current notions of fairness in the community, at the time of trial, the appellant should be recompensed under this particular head. Counsel for the respondent argued that if the court were to come to the view which I have just expressed or some substantially similar view, then one or other of two things ought to happen: the first would be that on the principle of Robinson v Riley (1971) 1 NSWLR 403, the court should set off against the under-compensation for item 6 what he claimed was the over-compensation for items 2 and 4. Alternatively, he submitted, in my opinion correctly, that having come to such a conclusion about item 6, the court would be bound to enter upon a full reassessment of the appellant's damages. On this approach also, he argued URJ STELTER v THE PRINCE HENRY HOSPITAL (Priestley JA) 5 that the trial judge was wrong in regard to items 2 and 4. Each branch of his argument therefore depends upon the success of his criticism of the amounts allowed for items 2 and 4. His Honour dealt with those items in detail and largely on the basis of figures agreed between the parties, although of course it was the mathematics, not the method, to which the respondent was agreeing. In light of both the detail which may be found in his Honour's reasons and the rather general approach adopted by the respondent in criticism of this aspect of the trial judge's reasons in the appeal, I think I need do no more in regard to these items than say that I agree with the method adopted by the trial judge of approaching the appellant's post trial damages by dividing them into three periods and treating each period somewhat differently in accordance with his findings about the probable future progress of the appellant's disabilities. The chief points made by counsel for the hospital in criticism of the method adopted by the judge were: 1. that he did not sufficiently recognise the extent to which she would be able to work, notwithstanding her injury; 2. the trial judge's finding that the appellant would, but for the injury, have worked full time from 1992 onwards. Both of those criticisms seem to me to be fully answered by the trial judge whose findings of fact are already noted, and which, on a reading of the transcript, I would reach myself. Finally, counsel submitted that there should have been a greater allowance for contingency than the twenty per cent adopted by his Honour. It was said that at least thirty-three and a third per cent was appropriate because of the appellant's position as a part time worker, as the wife of a professional man, and as having some income of her own derived from her husband's profession. This last matter was dealt with at one point in the trial judge's reasons, in my opinion adequately, subject to a minor qualification. He pointed out that this income of the appellant's in no way enlarged the amount of money coming into the family home. He did not mention the minor qualification which I now note; that although the aggregate income coming into the home would not have been enlarged by this income of the appellant's, the net income would no doubt, if all went in a tax fashion, as the appellant and her husband would have been expecting, somewhat greater than if the particular arrangement had not been made. When I say net income, I mean income after tax. However, more importantly than this, the trial judge's findings about the feeling of the appellant in regard to working in her own right are a complete answer to the submission. In my opinion the criticisms of the trial judge's approach to economicloss do not succeed. Thus, the Robinson v Riley argument must fail. Looking at the matter on a reassessment basis, I would approach all of the itemsin the trial judge's list in the same way as he did with the exception of item 6. In regard to that item, as will have, already become clear from an earlier comment I made, it seems to me that the injury suffered by the appellant was one having a severe and significant effect on the whole of her life from the age of thirty-seven. In the light of the material before the court I would substitute for the trial judge's figure the figure of $60,000, $30,000 of which, for the purpose of interest calculations, I would attribute to the period from the injury totrial. Using the same interest percentage figure as his Honour, and adopting the same practical method which his Honour did, which I understand to be usual in cases of this kind, in regard to that portion of the award, item 7, on my calculations subject to correction if necessary of counsel, becomes $12,000. 6 UNREPORTED JUDGMENTS In my opinion the judgment below should be set aside and in place of it and as at the same date as which it was entered, there should be entered judgment for $175,790; the costs order made below should stand. The respondent hospital should bear the appellant's costs of the appeal. Mahoney JA I agree, Approaching the matter upon the basis of a reassessment I would not depart from the learned judge's approach to economic loss. The three periods which the judge took, I think, were properly analysed by him and the amounts arrived at by him were amounts that I would adopt as my own. I agree with theorders which have been proposed. Hope JA I agree. The order of the court therefore is as announced by Priestley JA. Counsel for the Appellant: CT BARRY Counsel for the Respondent: DJ CASSIDY QC / P ADAMS Solicitors for the Appellant: TURNER FREEMAN Solicitors for the Respondent: ELEONORA G SCARPORA