ANNETTE SMITH v KAREN WALLY BIRO SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL GLEESON CJ (2), PRIESTLEY JA (3) AND HOPE AJA (1) 28 March 1991, 28 March 1991 [1991] NSWCA 249 DAMAGES — motor vehicle accident — quantum — no question of principle — appeal dismissed. Hope AJA The respondent / plaintiff sued the appellant/defendant for injuries and associated disabilities resulting from an accident which she had whilst jogging across a pedestrian crossing on 25 July 1984. The plaintiff was born on 8 September 1934 and thus she was fifty years of age at the time of the accident and nearly fifty-five years of age at the date of trial. She suffered in the accident two principal injuries; one being described as a fracture of the right knee joint with marked depression of the left tibial plateau, and the other as a back injury consisting of an aggravation of a pre-existing degenerative condition. She was knocked unconscious at the time of the accident and was taken to hospital where she remained until 16 August 1985. She was operated on for her knee and a screw was inserted. Her knee was encased in plaster. After the plaintiff had been admitted to hospital she noticed, out of the general pain that she was suffering, a pain in her low back which went down her left leg to the ankle. She came out of hospital and gradually recovered, although she had to have manipulation of her spine on three occasions. On one of those occasions she also had the screw removed which had been inserted in her knee. The plaintiff had been employed at the time of the accident for many years, and went back to work in December 1984. She had previously been employed as an usherette but she found that work difficult because of continual standing and walking, and she was given a job as a cashier which enabled her to sit for most of the time. This relieved, to some extent, the pain she suffered from her right leg She was still employed as a cashier at the time of the trial. The learned trial judge awarded a total of $122,266.71 in favour of the plaintiff. Of this sum, $55,000 was awarded for general damages, $42,500 in respect of future economic loss and $8,000 in respect of future medical requirements. Each of these three sums has been challenged by the appellant. The appellant has sought, in possibly an indirect way, to challenge some of his Honour's findings of fact. It is apparent that although the plaintiff had omitted telling some of the doctors who had seen her about her pre-existing back condition, his Honour accepted her as a witness of truth. Although he did not say that in so many words, his acceptance of the evidence which she gave against evidence of some of the medical practitioners makes it apparent that this was his conclusion. The plaintiff's evidence was that she suffered pain most of the time from her back going down her left leg, and also for a lot of the time from the injury to her right knee. The pain from the injury to the right knee was relieved to some small extent when the screw was removed but it still continued and, on the evidence, will continue so long as she lives. 2 UNREPORTED JUDGMENTS There was a lot of evidence at the trial concerning the pre-existing degenerative condition of her spine, and it was claimed by the appellant/defendant that she would have suffered the consequences which she now suffers from the degenerative condition even if the accident had not happened. In 1979 and possibly earlier, she had sought medical treatment for her back condition and she was given, among other forms of treatment, acupuncture. For whatever reason it may have been, she was not suffering pain from her back condition at the time of the accident, and had not suffered it for some years before then. His Honour attributed the pain and suffering and associated disabilities, which arose after the injury to her low back, to the effect of the accident, and not simply to the pre-existing degenerative condition, which was asymptomatic at the time of the accident. It maybe, of course - and this has been strongly put on behalf of the appellant - that at some time in the future pain and like disability will recur from the degenerative condition. That position had not arisen at the time of the trial and there was no evidence, as I understand it, as to when it would occur, if it would occur, and if it would ever catch up with the condition which resulted from the accident. If it did, then no doubt the pain and disability which she suffered from the accident would be increased by that resulting from the degenerative condition. It is true that the plaintiff was continuing to work but it was equally apparent from the evidence that she suffered from considerable disability both in her work and socially and domestically. She was separated from her husband and had to look after herself. Daily she suffered pain and had difficulty in standing, sitting and doing other work which involved her back or her right knee. The question arises whether the award for the plaintiff, who still had some twenty-three or twenty-four years to live, was so high that this Court should interfere with it. In my opinion, the award was well within range and certainly not excessive so as to justify interference by this Court. The learned trial judge did not spell out precisely how he arrived at the award for future economic loss. Calculations have been made by counsel to suggest how it may have been arrived at but one conclusion of the learned trial judge was that the plaintiff would have continued in all probability to work until she reached the age of sixty-five years. In my opinion, there was ample material for reaching this conclusion. The plaintiff was obviously a person who was determined to work when she could, and she was very stoical about her disabilities and her pain. I find no basis for rejecting the learned trial judge's conclusions in this regard. The learned trial judge also concluded that in all probability, by reason of the injuries and disabilities which she had suffered as a result of the accident, she would be compelled to cease to work before she was sixty-five. There was no evidence as to precisely when that would occur and the learned trial judge had to do the best he could in the circumstances appearing from the evidence. It seems that he considered that she would have had her capacity for future work reduced by something in the order of three years. In my opinion, there is no ground for this Court to interfere with the learned judge's assessment of future economic loss. The award of $42,500 cannot be regarded as so high that it should be set aside. URJ ANNETTE SMITH v KAREN WALLY BIRO (Priestley JA) 3 As regards the award of $8,000 for future surgery, the learned trial judge found that in all probability the plaintiff would have to have a knee replacement operation. There was evidence as to part of the cost of that operation but not as to the whole of the expense that would be incurred Again his Honour has done the best he could to arrive at the probable cost. In my opinion, the sum of $8,000 which the learned judge awarded in this regard cannot be regarded as excessive. None of the grounds of the appeal are made out and the appeal should be dismissed with costs. Gleeson CJ I agree. Priestley JA I agree. The appeal is dismissed with costs.