GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v ARANKI SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, CLARKE and HANDLEY JJA 20 May 1991, 29 May 1991 [1991] NSWCA 106 DAMAGES — GENERAL DAMAGES — EXCESSIVE — NO QUESTION OF PRINCIPLE Priestley JA I agree with Clarke JA. Clarke JA The respondent was injured in a motor vehicle accident on 13 May 1985. She sued to recover damages in respect of those injuries and was successful before McDevitt DCJ who awarded her $100,000.00. In actual fact he assessed damages at $106,088.19 but because of the limits of the jurisdiction of the District Court he entered judgment for $100,000. The two elements which made up the assessment of damages were general damages, which his Honour assessed at $100,000 and out-of-pocket expenses which were agreed at $6,088.79. The appellant has submitted that the award of $100,000 was out of all proportion or, to adopt the language used in Miller v Jennings, 92 CLR 190, at 197: "The compensation assessed is so (excessive) as to be beyond the limits of what a sound discretionary judgment could reasonably adopt." The appellant put its contentions in three ways. First, its counsel argued that on any view of the evidence the amount awarded was grossly excessive. Secondly, he submitted, that in any event the assessment was flawed by his Honour's erroneous view that it was likely or probable that the respondent would undergo surgery. Thirdly, it was said that his Honour had over-stated the effects of the accident upon the respondent and this error had led to an unsustainable award. The respondent was born on 18 August 1941 and was 43 years old at the date of the motor vehicle accident and 48 at the date of trial. She was married in 1959 and came to Australia with her husband in 1964. At some unspecified time, which appears to have been either 1984 or 1985, her husband suffered a heart attack and became an invalid pensioner. The accident occurred on 11 May 1985 and the respondent did not immediately seek treatment. She did, however, consult her family doctor, Dr Nicholas, on 13 May 1985 complaining of pain in her neck, low back and legs. Her neck pain, also, she said, caused occipital headaches. X-rays taken at the doctor's request reported no significant abnormality in the neck but the lumbo sacral x-rays showed a retrolisthesis (backward slipping) of LS on the sacrum. Later Dr Nicholas arranged for a CT scan to be carried out and the relevant part of the report prepared following that scan was as follows: "There is evidence of well marked degenerative changes demonstrated in the lumbo sacral disc, with associated central and bi-lateral lisc protrusion and reactive changes around the disc margin, causing narrowing of the lateral nerve root canal.... There is evidence of early osteoarthritic changes demonstrated in the neuro-central joints of the lumbo sacral level, with associated osteophytic formation." 2 UNREPORTED JUDGMENTS In Dr Nicholas's view the CT scan demonstrated a disc protrusion or, as it is usually described in lay language, a slipped disc. He concluded, as a result of many consultations and the radiological evidence, that the respondent's disc lesion had been caused in the accident and was primarily responsible for her continuing claims of pain in the back and the radiating pain to her legs. These pains were the most significant for the medical evidence supported the view that the neck pains would gradually disappear. The respondent suffered also from a depressive reaction which had been precipitated by the accident. In this respect the respondent complained of an affected memory, poor appetite, weight loss, irregular periods, and incontinency of urine and loss of interest in sex. The doctor"; opinion that these complaints resulted from a depressive reaction was not seriously challenged and was, as it seems to me, accepted by his Honour. The trial judge also accepted the complaints of pain which were made by the respondent. Having made these complaints she was asked the following questions to which she gave the following answers: "Q. How does your back pain affect you? A. Especially when I do something in the house or when I clean the house or when I do heavy job I do it very slow but after couple days I get sick from my back, I have to use tablets for the back. Q. What sort of things in the house do you find more difficult now? A. When I put washing on the line, if I want to sweep the floor, something like when I bend down makes - hurts me a lot. Q. Any problems cooking? A. When I m stand up I cook I sit down all right but if I stand up more one hour I get sick from the both Legs too. Q. And when you re travelling in a car any problems? A. When I sit more than one hour I feel tired from my back from my headache too. Q. Which is the worst pain the pain in your neck or your lower back? A. Sometime if I sit down and watch TV more one hour I get sore neck. When I work more one hour or something or - I go shopping sometimes if I walk around the shop more half hour I get sick from my back. Q. Which is worse your neck or your lower back? A. My back and leg more. Q. Which leg in particular? A. That one. Q. Your left leg? A. Yes. The picture painted by that evidence was that while the respondent still continued to do her housework she found that she was much slower in performing the various tasks and often suffered pain if she carried cut heavier work or work which required her to bend down a lot. In addition she found that she was unable to stand for more than one hour while she was cooking and as a result found that she had to spend much of the time sitting while cooking. Her pain and depression had led to observable changes in her personality. For instance her husband said that the accident had changed her from a lovely laughing woman to one who was always sad. Her son supported the thrust of this evidence saying that she had become short tempered and very picky since the accident. According to him she always seemed to be fed up became agitated very quickly and aggressive towards the family and friends. It is necessary to mention one further aspect of the case in order to complete the picture. The respondent said that her back and legs had been good before the accident. If these statements are understood as indicating that immediately before the accident she had no trouble with either her back or her legs they may have been accurate. Nonetheless they are somewhat misleading. \GROVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v ARANKI (Clarke JAB The position is that the respondent had consulted Dr Nicholas for pain in the legs prior to the accident. She consulted him on 14 May 1984 complaining of pain in the right legs and cramps. She consulted him again on | September 1984 and at this stage the doctor thought that she had sciatic pain in the right leg. Again in February 1985 she consulted Dr Nicholas complaining of pain in both legs and the doctor thought this was sciatic pain Of course the respondent had a degenerative back and it is possible that the retrolisthesis may have been present before the accident. Although the doctor was not certain what caused the pre-accident sciatic pain he agreed with the suggestion that even if she had not had the accident she was a candidate for trouble in the future and would probably have had recurring attacks of sciatic pain. The case then is one in which a lady in her forties with a degenerative back which had already caused symptoms suffered a disc herniation in an accident as a consequence of which she has suffered from continuous pain in her back and an increase in severity and occurrence of sciatic pain in the legs. Although Dr Nicholas thought she may be helped by surgery this view as not shared by any of the other doctors whose reports were tendered and the respondent herself had made it plain that she would not undergo surgery. Accordingly, there was, as I see it, no reasonable prospect of her submitting to back surgery. It is convenient to deal initially with the submission of the appellant which I have listed as the second one, that is, that his Honour had mistaken the evidence concerning the likelihood of the respondent submitting to operation. It was said that the mistaken view of the evidence was demonstrated in one of two ways. The relevant passage in his Honour's judgment when properly understood indicated that his Honour thought that it was probable that the respondent would submit to surgery or, if that not be correct, that the size of the award was only explicable upon his Honour's view that surgery was likely. Ido not think the submission can be accepted. There is nothing in the judgment which indicates that his Honour took the view that it was probable, or even reasonably likely, that the respondent would submit to operation. Furthermore, the size of the verdict does not lead inevitably to a conclusion that his Honour believed that the operation was likely. Indeed I would go further and say that in the light of the terms of the judgment the inference for which counsel contends is not open. The third submission had more substance. After accepting the respondent's complaints his Honour said: "The uncontradicted evidence is that she will have some pain each day for the rest of her life. The symptoms are extremely debilitating and have devastated her capacity to enjoy life and to perform her ordinary household duties." I have already referred to the evidence which is relevant to this issue and that evidence does not entirely support the statements made by his Honour I would accept that the symptoms are debilitating and would have a significant impact on the respondent's capacity to enjoy life and to perform her household duties. But I do not think it could be said that they have devastated those capacities or that the symptoms could properly be described as extremely debilitating. Although there are questions of degree involved such as would tend to make me hesitate before setting aside the judgment upon the grounds that his Honour had overestimated the effects of the accident, the size of the verdict has persuaded 4 UNREPORTED JUDGMENTS me that the views expressed in the passage I have recited led his Honour to award a sum which was outside the limits of what a sound discretionary judgment could reasonably adopt. His Honour's factual findings require that I accept the thrust of the evidence given by the respondent and her witnesses to the effect that;he has significant continuing problems which have caused anxiety and some measure of reactive depression. These are serious matters. On the other hand the respondent never went to hospital, never submitted to surgery, did not suffer the type of significant trauma in the accident which leads to hospitalisation and is able to carry on with her life albeit with pain and difficulty. In my opinion the evidence accepted by his Honour does not justify an award of general damages in the region of $100,000 and the award should be set aside. I would accordingly set aside the award and, in accordance with the requests of the parties, reassess the damages. Upon such reassessment I would award the respondent $70,000 general damages to which should be added the out-of-pocket expenses resulting in judgment for the respondent in the sum of $76,088.79. I propose that the following orders be made: 1. Appeal be allowed; 2. The judgment of McDevitt DCJ set aside and in lieu thereof direct judgment for the respondent in the sum of $76,088.79, such judgment to date from 11 October 1989. 3. The appellant should pay the costs of the trial. 4. The respondent should pay the costs of the appeal and have a certificate under the Suitors Fund Act. Handley JA I agree with the judgment of Mr Justice Clarke. 1. Appeal be allowed; 2. The judgment of McDevitt: DCJ be set aside and in lieu thereof direct judgment for the respondent in the sum of $76,088.79, such judgment to date from 11 October 1989. The appellant should pay the costs of the trial. 4. The respondent should pay the costs of the appeal and have a certificate under the Suitors Fund Act. » Counsel for the Appellant: P BELL Solicitor for the Appellant: R J WALTERS Counsel for the Respondent: R MULLIGAN, Solicitor for the GIO Solicitors for the Respondent: VAUGHAN ZARB and CAPALUPO