BRODBECK v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS, CLARKE and HANDLEY JJA 12 august 1991, 12 August 1991 [1991] NSWCA 34 APPEAL — DAMAGES — GENERAL DAMAGES — NO Clarke JA This is an appeal by a plaintiff for damages awarded to her by JudgeNash which totalled $53,939. It is her contention that the award is inadequate and that the dictates of justice require the assessment of much larger damages. The plaintiff was born in 1967 and was eighteen when she was involved in the accident the subject of the claim. That accident happened on 7 September 1985. She sustained a number of injuries the two most important of which concerned her neck and her lower back. At the time of trial her neck was still troubling her although the medical evidence suggested that she might have further recovery in that area. Her most significant injury was the injury to her lower back which was ultimately disclosed as a disc protrusion. In the year following the accident she underwent a deal of physiotherapy and late in that year she saw an orthopaedic surgeon, Dr Pillimer, and a neurologist, Dr Ell, both of whom found her to be fairly severely affected by pain from her lower back condition. Eventually Dr Johnston, neurosurgeon, saw her. He carried out a myelogram to confirm an earlier CAT scan and in the event the earlier diagnosis of disc protrusion was confirmed. On 12 October 1987 she underwent discectomy and approximately two months later she returned to her work. She had from the time she left school in 1983 and in 1984 worked for Westpac in various sedentary occupations and it is to that company that she returned although then only working 29 hours. She was, I should add, married in August 1986 but partly, apparently, because of her distress and unhappiness and the pain she was suffering differences occurred between herself and her husband and they separated in October 1988. The facts are all set out in his Honour's judgment and it is, I think, unnecessary at this stage for me to say any more about them. His Honour assessed the damages on the basis of an allowance of $40,000 for general damages, agreed past wage loss and out-of-pocket expenses and an allowance of $10,000 in respect of the impairment of her earning capacity. In essence leaving aside interest the only amounts which fell for assessment were the two figures which total $50,000. The appellant has challenged both those figures and as well has contended that his Honour erred in not making further allowance for pre-trial loss of wages. The claim was really advanced upon the basis that she had only worked 29 hours a week since returning to work after the accident and she should be allowed the difference between the wages that she was paid and those which she would have earnt if she worked a normal working week. His Honour rejected that claim and on the evidence I think that course was certainly open to him. 2 UNREPORTED JUDGMENTS She herself said that she worked a shorter period as a matter of preference although she did indicate that her injuries had something to do with it. In those circumstances I do not think it can be said his Honour erred in rejecting the claim. At this stage before I deal with the other two challenges it is appropriate to point out that the plaintiff filed a Notice of Motion seeking to adduce before this Court further evidence which, according to her counsel, falsified the basis upon which her damages had been assessed. The evidence which was sought to be introduced was evidence to the effect that about four months after the date of trial she had an attack of sneezing as a consequence of which she felt severe back pain at the site of her earlier operation. A month later she woke to find that she could not walk, sit or stand because of severe back and leg pain. She saw Dr Johnston once again and he resubmitted her to operation. At that operation further disc material was removed. Her evidence in deposing to those facts was supported by medical reports of Dr Johnston and Dr Pillimer to the effect that she had had this later distressing experience and giving more up-to-date prognoses. The court has already indicated that the application should be rejected. The broad principles upon which applications of this nature are to be determined are well understood and most recently discussed in the case of Doherty v Liverpool District Hospital, Court of Appeal, 13 March 1991, unreported. It is unnecessary, I think, to enter into a lengthy discussion of those principles. The argument was put upon the basis that his Honour had failed to consider the contingencies. That argument seems to me to be without any substance at all because it is clear from his Honour's judgment that he gave attention to Dr Fowler's report in which the doctor spoke of the plaintiff's need to change her lifestyle to avoid stresses and strains on her back. Counsel also sought to mount a subsidiary argument that the parties had conducted the case upon a common assumption that within a few months after the accident she would not have a sneezing attack which would cause the problems which were suffered by her. It is sufficient for me to say that there is not the slightest indication in the record that there was any such common assumption. Indeed it would have been surprising to have found reference to it for as it seems to me the case was conducted upon the usual basis that the plaintiff had had a significant back injury which carried with it the risks that she might suffer serious injury in the future unless she was very careful. His Honour adverted to Dr Fowler and in other passages of his judgment indicated that he had regard to the contingencies. It was for these reasons that the application was rejected. The alternative argument which was advanced by the plaintiffs counsel was that if his Honour did have regard to the future risks to which this plaintiff was exposed then bearing in mind her comparative youth he certainly failed to give them due and proper weight. She was after all 22 at the date of trial and had a long life ahead of her during which she would presumably wish to work from time to time and, in addition, to have a family. She gave evidence that there was other material in the evidence which supported the conclusion that she was keen to have children and the evidence to which I will advert shortly conveys the notion that her back condition was such that she may well have problems during childbirth and the period before and after it. In addition it would appear that her work capacity was fairly severely restricted in that she could only sit down for a certain period of time. She had UARDDBECK v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Handle? JA) found that she could not even carry coins at this stage and even though she was leading a quiet life she found that events occurred which required her on a regular basis to lie down and rest. The prognosis which was considered at trial was dealt with shortly in the evidence but I think I should mention two excerpts. In one drawn from Dr Scarlett's report of 19 April 1988 the doctor said that he did not expect further acute lumbosacral symptoms but in this respect her prognosis was of necessity guarded. The other is drawn from the report of Dr Fowler which was quoted by his Honour and which reads: I would consider that her prognosis is for continuation of the present back problems and certainly so that she is able to carry on with her work as a bank teller she has had to change her lifestyle somewhat to avoid stresses and strains on her back. She has had to avoid any forms of sport which would cause any stress or strain. This restricted lifestyle I consider is permanent." That latter passage sums up shortly but with effect the dramatic change brought upon a young and active girl by this motor vehicle accident. It is obviously difficult to assess a component for lost earning capacity when one is having regard to a lengthy period of time and the fairly indefinite nature of the impact of the injury and the risk it carries upon her work capacity. Accordingly, trial judges are to be accorded a fair range within which to award such a component of damages. In this case, however, I think his Honour's award both in respect of this item and in respect of general damages was utterly disproportionate to the injuries proved. It would seem to me that it is appropriate in order to effect proper compensation to double the award for lost earning capacity and to increase the award for general damages to $65,000. Accordingly, I would propose that the appeal be allowed, that the judgment of Judge Nash be set aside and in lieu thereof judgment in the sum of $88,939 be entered to date from the date of the judgment at first instance which was 5 February 1990. The new evidence motion should be dismissed. The respondent should pay the appellant's costs of the appeal and if otherwise qualified to have a certificate under the Suitors Fund Act in respect of those costs. There remains only the question of costs of the motion. Samuels JA I agree. Handley JA I agree. While we do not wish to encourage wild cat applications for fresh evidence, or new evidence, we think that in the circumstances we will make no order for the costs of the motion. So the orders of the court are those proposed by Clarke JA in addition there will be no order for the costs of the motion. Counsel for Appellant: R P McLOUGHLIN Solicitors for Appellant: KENCALO and RIMES (Liverpool) Counsel for Respondent: M A ELKAIM Solicitors for Respondent G LEEDS (Parramatta)