MILLS v ELLIOTT SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, HANDLEY JJA and Hope AJA 11 February 1991, 11 February 1991 [1991] NSWCA 199 Appeal from District Court — Judgment of $201,327 for injuries of a whiplash nature and consequent psychiatric depression caused by a motor vehicle accident — Little chance of improvement in pain or depression — Awards for general damages ($70,000), cleaning services and past and future economic loss not appealably excessive — Appeal dismissed with costs — No question of principle. Mahoney JA The plaintiff was born on 2 May 1958. On 3 July 1982 she suffered a motor vehicle accident. She was then approximately twenty-four years of age. She brought proceedings against the defendant in the District Court. His Honour Johnston DCJ on 16 June 1989 gave judgment for the plaintiff for a total of $201,327. The judgment was made up in the following way: General damages 70,000 Interest on past general damages and past wage loss 19,738 Future medical expenses 4,265 Past massage costs 1,560 Future massage expenses 4,265 Future physiotherapy 9,952 Past expenses of household cleaning 1,560 Future household cleaning 4,739 Future psychiatric care 5,000 Past wage loss 6,060 Future economic loss 70,584 Agree out of pocket expenses 3,604 These items, as I have said, total $201,327. The defendant has appealed to this Court against the quantum of the judgment. Liability before this Court is not now in issue. The facts giving rise to the plaintiff's claim are not significantly in issue. The plaintiff suffered a whiplash injury in the collision. She went home and the next morning went to the Westmead Hospital. It seems that she suffered a serious soft tissue injury in the cervical and lumbar areas. She has suffered chronic pain and, because of this, chronic depression and, I put the matter generally, there has been and appears likely to be in the future little change in her condition. His Honour accepted the plaintiff as a witness of truth and accepted the evidence, both oral and written, of Dr Searle and Dr Roberts, each of whom gave evidence at the trial. There was, I should interpolate, other medical evidence provided by way of written medical reports. 2 UNREPORTED JUDGMENTS The plaintiff gave evidence in some little detail as to her condition both before and after the accident. She was, she said, perfectly fit prior to the accident. She was shocked by the accident. She said that the day after the accident her back became stiffer and stiffer and she was "just trembling", "my whole body was just trembling". As I have said, she went to the Westmead Hospital and was treated in casualty, apparently by provision of pain tablets. The hospital treatment did not assist her. It is not necessary to deal in detail with the medical details of her condition or the history of it. Counsel has provided a detailed chronology in relation to the matter. The Court is grateful for the details provided. The chronology is, I think, sufficiently detailed for present purposes and provides an outline of the plaintiff's treatment. She saw her medical practitioner immediately after the accident. In December 1982 she had a day off for chiropractic manipulation. She then had physiotherapy and had time off work because of back pain and migraine. She commenced physiotherapy in August 1983 with Mr Adam and had eight treatments with an osteopath in October 1983. In February 1984 she was married. On 12 March 1984 she changed from full-time employment to part-time employment in a retail shop working some twenty-five hours a week. Subsequently in May 1984 she increased that to twenty-seven or twenty-eight hours a week. On 15 July 1985 she ceased work and commenced unpaid maternity leave. On 1 September 1985 her son was born. She went to work part-time in a chemist shop, but ceased work there because of the change of address she and her husband made subsequently. She left the employment of the pharmacy in November or December 1985. Since that time substantially she has worked only in a part-time job as a casual fitting room attendant working on Saturday between 8.30 am and 4 pm. This work she commenced on 20 December 1986. That employment continued, it would appear, up to the time of the trial. I have not detailed all of the medical and other attendances. Mr Tonner in his helpful chronology has set them forth and it is not necessary to do so. The plaintiff's evidence was that since the accident and because of it she has continued to have pain, both in the area of her arms and back and in particular in the lower lumbar area. The evidence which she gave was not detailed at length, but it was not significantly contested and was completely accepted by the learned judge. She found, for example, that the full-time work that she was doing shortly after her marriage was becoming too much for her, that just being on her feet, the bending, lifting, coming home and having to do the housework, was too much for her. She found the work "very difficult", and this was because of the pain. She did not in detail discuss the severity of the pain, she did not categorise it in terms, but the extent of it and the severity of it can, I think, be inferred, and no doubt the learned judge inferred it, from the things which she was notable to do. He found, for example, that she felt it appropriate to employ an outside person to do cleaning in the house, such as cleaning the bath, the bathroom, vacuuming the house and washing the floors. She felt she could not do this because of the state of her back and generally her condition. She referred in her evidence-in-chief to the problems of aggravating the difficulties in her thoracic spine. She tried to avoid it being aggravated but was not able to do so all the time. In relation to her neck and cervical spine she had trouble about once a fortnight, but in her lower back the pain was there "all the time". She referred to the difficulty with pain in her right arm and her left arm and the alternating nature of it. URJ MILLS v ELLIOTT (Mahoney JA) 3 The plaintiff's condition as to pain apparently produced a_ psychiatric condition. She suffered and still suffers from chronic depression. The depression has a significant effect on her and the evidence seems to be, as one of the doctors put it, that there is difficulty deciding which causes which and which contributes to which. This is, it was said, a "horse and cart" difficulty. The psychiatrists did not provide any substantial evidence to suggest that her psychiatric condition would improve, at least unless her condition as to pain improved, and the evidence from the doctors did not suggest that her condition as to pain would improve. The learned judge in his judgment quoted passages from the evidence given by themedical practitioners. It is, I think, for present purposes sufficient to cite the opinion given by Dr Alan Searle, consultant orthopaedic surgeon, in his report of 18 May 1989. Dr Searle gave oral evidence before the learned judge and, as I have said, the judge specifically accepted his evidence. Dr Searle's opinion was in the following terms: "The symptoms and disability from her cervical and lumbar ligament strains are persistent and permanent and still cause a severe degree of disability. There will be no change in these conditions with the passage of time. As previously noted, she is fit for only part-time sedentary work. Her present work, one day a week, is probably her maximum." The defendant challenged essentially four components of the learned judge's judgment: general damages, the provision for past and future cleaning and the past and future economic loss. The award for general damages was, as I have said, $70,000. The amount awarded is, in my opinion, at the higher end of the scale. It is, insofar as this may be relevant, higher than I myself would have given. But the principles which govern the review of these matters by this Court as on a rehearing are well settled. Reference has been made to them in cases such as Miller v Jennings 92 CLR 190, and in Moran v McMahon (1985) 3 NSWLR 700 where Priestley JA reviewed the situation in relation to damages generally. If the evidence be accepted, as it was, then the plaintiff is faced with a situation in which both as to pain and as to psychiatric depressive illness she is unlikely to have any change in the future. She has suffered these conditions in the manner detailed in the medical reports since the time of the accident, a period of some seven years. She is a comparatively young woman, and there is no suggestion in the evidence and no substantial opinion given that her condition is likely to improve in the future. In these circumstances I do not think that the award of $70,000 lies outside the range of a sound discretionary judgment. I do not think that it is proper to interfere or interfere with it. I confess to having some doubt as to the extent of the pain from which she was suffering and, perhaps, the extent of the depressive illness. This was not dealt with in terms by the plaintiff in her evidence. However, she was not significantly cross-examined upon these matters and the extent of the difficulty from which she has suffered was, as I have indicated, described by Dr Searle in terms of "a severe degree of disability". In these circumstances I think that the nature of the pain and the consequences of it are such that, as I have said, it is not possible for this Court to say that the amount awarded is outside the range appropriate to a sound discretionary judgment. The second matter argued on the appeal was the amounts given for past cleaning and future cleaning. The plaintiff's evidence was that because of her physical difficulties was not able to do certain housework which ordinarily she would do. She had given evidence that her condition was such that it was, for 4 UNREPORTED JUDGMENTS example, too painful for her to help her husband in painting or wallpapering in the home. She said, "I just could not bend. I just have not got the strength". She said that she had tried, but her shoulders "and everything" would ache. She was then asked what had been the position when she went back to living in her own home after she had lived with her mother. She said that she had a cleaner who came in once a week. She paid him twenty dollars a week, and the cleaning he did was cleaning the bath and the bathroom, vacuuming through the house and washing the floors. She said that if she had not been injured she would have been able to do the work herself. She said that she and her husband had money problems and this, perhaps, adds some insight into the circumstances in which she was expending twenty dollars a week for the cleaner. The substantial attack made upon the allowance for past and future cleaning, as I have described them, was that these were services which were not reasonably required to be done because of her injuries. It was suggested that they might reasonably be done by her husband. There is the initial difficulty which the defendant faces, namely, that this matter was not put either to the plaintiff or to her husband during the course of their oral evidence. It may be that if it had been put to them that these were services which the husband ought reasonably be expected to have provided there would have been able to have been provided, either by the plaintiff or her husband, a convincing explanation as to why the husband could not do this work. In these circumstances, I think the defendant has difficulty in pressing this type of submission. But however this be, the plaintiff's evidence as to her back condition would suggest that she would have difficulty doing the kind of work in question, and his Honour's acceptance of her makes it proper to conclude, as I think his Honour did, that the employment of an outside cleaner for this purpose was reasonable and was a matter produced by the accident. I do not think that this submission should succeed. The final matters that were put, and I shall treat them together, related to the past wage loss of $6,060 and future economic loss of $70,584. The learned judge assessed the past economic loss by reference to the plaintiffs evidence as to what uninjured she would have done and what injured she was able to do. Putting the matter shortly, I do not see any error in relation to the calculation of past economic loss. The amount involved is relatively small in the context of this judgment, and it is not necessary, I think, to pursue further the details of it The amount allowed for future economic loss, $70,584, is of course, more substantial. It appears, from the terms of the learned judge's judgment, and this has been accepted in substance in the argument, that the learned judge assessed damages upon the basis that the plaintiff would lose about eighty dollars per week net and that that loss would continue over the period of a working life extendingto approximately sixty-five years. No attack was made upon the mathematics of the calculations for this purpose. In my opinion, if the learned judge took, as I think he did, the basic loss to be eighty dollars a week, there can be no objection to this part of the finding. The details of what the plaintiff could and would have earned had she not been injured were referred to in evidence. It was possible to conclude that in the future had she not been injured she might well have been earning much more than the eighty dollars a week in question and that her loss may well have been of theorder of $125 to $135 per week. That was accepted by Mr Tonner in argument, as of URJ MILLS v ELLIOTT (Hope AJA) 5 course he was obliged to do. His Honour, in accepting eighty dollars a week, therefore discounted the amount of loss which might otherwise have been found to be attributable to the accident. The real difficulty which I have felt in relation to future economic loss is whether it would be proper to infer that the plaintiff would have, uninjured, worked until she was sixty-five years of age. There are involved in the use of the a ge sixty-five for this purpose a number of inferences or assumptions. But the plaintiff's evidence was that she liked to work, she liked the company and she and her husband needed money. It may be that as time went on they would not need money so much. It may be that she would not have liked work so much, but again none of these matters were put to her in cross-examination. In the circumstances, bearing in mind that the figure taken, namely eighty dollars a week, was as I have said less than might have been taken, I do not think that the amount awarded for future economic loss, $70,584, discloses an appealableerror. In the circumstances, I do not think that this submission should be upheld. The result therefore in my opinion is that the appeal should be dismissed with costs. Handley JA I agree. Hope AJA I agree. Appeal dismissed with costs. Counsel for the Appellant: RC TONNER Counsel for the Respondent: GB HALL QC / CP HEAZLEWOOD Solicitors for the Appellant: PANDRESAKIS, PARRAMATTA Solicitors for the Respondent: ROONEY and HEAZLEWOOD