CAMPBELL v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL CLARKE JA, MEAGHER JA and HANDLEY JA 14 November 1991 [1991] NSWCA 43 QUANTUM — NO ISSUE OF LIABILITY Handley JA. This is an appeal by the plaintiff from the assessment of her damages by his Honour Ward DCJ. Liability was not in issue at the trial. The plaintiff was injured in a motor vehicle accident on 31 December 1986 when she was forty-two years of age. She suffered serious physical injuries in that accident, which the trial judge summarised as follows: There were fractures of the transverse processes on the left side of her spinal cord in the area of L3, L4 and LS. There was also a vertical fracture on the right side of the sacrum. The pubic bones were fractured, with bilateral inferior and superior rami weakened, and on the right side close to the set of bulum. Dr Searle, whose evidence was accepted by the trial judge, expressed the opinion in his first report of 12 October 1989 that the fractures of the transverse processes of the lower lumbar vertebrae were an indication of the severe trauma which the plaintiff had suffered to this part of her body. Although the fractures had healed and were of little importance of themselves, the doctor expressed the opinion that the plaintiff had also suffered aggravation of her pre-existing but previously symptomless lumbar spondylosis and intervertebral disc lesions. This aggravation was persisting and permanent, and caused a severe degree of disability. The Doctor considered that the plaintiff was permanently unfit for work which required prolonged sitting or prolonged standing, lifting or repeated bending or travelling moderate distances regularly. With regard to the prognosis, the doctor expressed the opinion that there will be a gradual increase in her symptoms and disability from her lumbar injury with the passage of time, because the degenerative changes will progress inexorably. This progress will be more rapid than might otherwise have been expected, because the degenerative changes had also been accelerated by the accident. Dr Searle also expressed the opinion in the same report that although the latest x-rays did not suggest any degenerative changes in the hip joints so that he couldnot conclude that the hips had been injured by the fractures in the pelvic region, nevertheless the clinical indications were that the plaintiff had suffered a ligamentous strain in each hip joint, and the symptoms and disability from this were persisting and permanent, and such as to cause her a moderate degree of disability. In his second report of 14 September 1990 Dr Searle said that the symptoms and disability from the plaintiff's lumbar injury, including aggravation of her pre-existing spondylosis and disc lesion, were persisting and permanent and caused her a severe degree of disability. He concluded there would be a gradual increase in her symptoms, and that by the time she was fifty-five she would be 2 UNREPORTED JUDGMENTS unfit for all forms of work. He also noted that the clinical condition of the plaintiff's hips was worse than when he had last seen her approximately a year before, particularly her right hip. Her range of movements was more restricted and pain was experienced earlier in the movements. Dr Searle concluded that the plaintiff had hip joint injuries, particularly on the right side, which were causing degenerative changes in the hip joints. There has been no suggestion that the plaintiff has exaggerated in any way her symptoms and disabilities. There is no suggestion of functional overlay. Her injuries were objective and not dependent in any material way on acceptance of her complaints of pain or weakness. The trial judge awarded the plaintiff $81,148 damages, which included $37,500 general damages, $30,000 for future economic loss, and the balance for past economic loss, out-of-pockets and interest. This assessment was based on his finding that in truth the plaintiff was ultimately going to have the sort of discomfort that she was experiencing at the time of the trial because of the natural deterioration in her bony structures. He saw his task as being to compensate her for the aggravation caused by the injury which had also caused this acceleration in discomfort. With respect to his Honour, this finding was not supported by the evidence of Dr Searle that he had earlier accepted. In his oral evidence at the trial Dr Searle said that he had seen x-rays of the plaintiff's spine taken on 31 December 1986, the day of the accident, and on 9 January 1987, shortly after. He identified in these x-rays evidence of the pre-accident degenerative changes in the plaintiff's spine and said that conditions such as those observable in the x-rays were quite common with people over the age of forty, butthat in the majority of cases those changes did not necessarily produce any symptoms of pain, but it was quite common for such changes to cause 'some back aches'. He added that the narrowing in the gap between the vertebrae observable in the x-ray reports did not prevent people whose spinal columns demonstrated such narrowing from performing their work adequately. He further added that although the plaintiff had spondylosis it was commonly symptomless, but having been aggravated to the point where symptoms were being experienced the natural history of the progress of the degenerative changes thereafter would cause increasing symptoms. There was therefore no more than a chance that the pre-accident degenerative condition in the plaintiff's spine would have produced anything more than 'some back aches' prior to her reaching the age of sixty when she might have been able to give up work and accept the age pension. Accordingly, on the evidence of Dr Searle it was not inevitable or even probable that the degenerative changes in the plaintiff's back would have incapacitated her for work prior to sixty. Indeed, there was not even evidence that this was a likely result in the sense that there was a fair chance of this occurring short of being more probable than not. In my opinion, therefore the critical finding of the trial judge earlier referred to, and a later finding that her present incapacity would have been 'a probability of nature if she had not had the injury', are contrary to Dr Searle's evidence and unsupported by any other evidence. This Court is therefore entitled and bound to interfere and substitute findings based on Dr Searle's evidence. It follows that the assessment of damages by the trial judge must be set aside and this Court must re-assess the plaintiff's damages. \WRMPBELL v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Clark@ JA) There is no difficulty in this Court undertaking the re-assessment because the plaintiff's evidence as to her condition and symptoms was not challenged, and the judge clearly accepted her, and of course he had also accepted Dr Searle. I would substitute an award of $75,000 for general damages. On a re-assessment there is no justification for awarding the plaintiff less than her full past economic loss before trial and I would increase the judge's award by $6,896 including interest, for the period up to trial. The amount allowed for future economic loss must also be re-assessed. Mr Poulos submitted that this Court should assess this component of the plaintiff's damages on the basis that she would have worked past sixty. Iam not satisfied that she would have done so and in this regard it is significant in my view that at the time she was asked no questions on this issue by her counsel. I am also not persuaded that she would have wanted to to work more than thirty hours a week or that such work would have been available to her on a regular basis through the Home Care Service. There was some evidence that just before the trial the Home Care Service was reducing the hours available to its workers. I would therefore award the plaintiff $27,754 for future economic loss to age fifty-five based on the loss of ten hours working time week, with a fifteen percent discount for contingencies. This is a substantial discount in favour of the defendant in a case such as this where a period of only eight and a half years into the future is in question. Dr Searle expressed the opinion that the plaintiff would not be able to work at all after age fifty-five. Allowing for a total loss of earning capacity from fifty-five to sixty, with the same discount for contingencies, results in a further award of $40,971. In my opinion therefore the following orders should be made: — 1. Appeal allowed. 2. Set aside the judgment of the trial judge and substitute an award of $164,269. 3. Such judgment to take effect from 12 April 1991. 4. The defendant is to pay the plaintiff's costs of the trial and of this appeal, and if qualified is to have a certificate under the Suitors" Fund Act with respect to the costs of the appeal. The award of $164,269 is made up of $75,000 for general damages, $6,938 for past economic loss to 20 July 1989 plus $3,145 interest on that amount as awarded by the trial judge, an increased allowance of $9,396 for past economic loss from 20 July 1989 to trial as explained in my reasons, $1,065 allowed by the trial judge for out-of-pockets, an amount of $27,754 for economic loss to age fifty-five and $40,971 for further economic loss to age sixty. These are the orders I would propose. Clarke JA. I agree. Meagher JA. I agree with everything which Handley JA has said, except that I would increase the general damages to $100,000 and therefore the plaintiff would be entitled to a judgment of $889,269. Clarke JA. The orders of the Court will be as Handley JA has announced. Orders accordingly. Counsel for the appellant: J POULOS QC and C HEAZLEWOOD 4 UNREPORTED JUDGMENTS Solicitors for the appellant: BAKER RYRIE RICKARDS TITMARSH Counsel for the respondent: D J RUSSELL 5 Solicitors for the respondent: PETER JESSOP