GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v NGUYEN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, HANDLEY JJA and SAMUELS AJA 13 and 14 August 1992, 14 August 1992 [1992] NSWCA 92 DAMAGES — quantum — no question of principle. Handley JA This is an appeal by the defendant from the judgment of Murray AJ in a running down case. Liability was in issue at the trial but the appeal has been limited to the issue of damages. The trial judge awarded the plaintiff a total of $358,492.10 made up as follows: out of pocket expenses $1290.10, past wage loss $30,000.00, interest on past wages $7,200.00, past domestic assistance $35,000.00, future wage loss $100,000.00, future domestic assistance $100,000.00, future medicals $5,000.00 and general damages $80,000.00. The appellant has challenged the awards for past and future domestic assistance and future wage loss. I gratefully adopt the trial judge's reasons and findings as to the plaintiff's injuries and her prospects for the future and on all medical issues. The trial judge in a careful and fully reasoned judgment considered the plaintiff's claims for past and future domestic assistance. Again, I gratefully adopt his Honour's preliminary findings on this issue. His Honour said: "Prior to the accident the plaintiff said that she looked after the family home. She attended to all her own needs and the needs of her husband and two children. She did all the housework as well as the cooking, washing and ironing. Following the accident, for a period of at least six weeks following her discharge from hospital she was unable to attend to her personal needs. Since that time she has been completely unable to do the heavy housework, but has gradually increased her ability to attend to her own personal needs and the needs of her family. She is troubled by headaches and dizziness and this impedes her with her home duties. She needs help with the hanging out of clothes, vacuuming and the like. She has problems with her memory and her ability to calculate money. She has problems with shopping, in particular with carrying heavy items. She is unable to engage in heavy lifting. She estimates that if she was able to employ help she would need such help for about two to three hours per day to handle those tasks which she is unable to do." His Honour correctly directed himself that he had to take care in considering this area of damage so as to make due allowance for the normal currency of family life and to distinguish between the plaintiff's accident caused need, which was compensable, and the needs of her family, which were not. His Honour then made specific findings as to the needs for domestic assistance at given periods between the date of her accident and the trial based on the progress of her recovery. This was interrupted when her second child was diagnosed as having cancer which was thought to be incurable and turned out to be so. 2 UNREPORTED JUDGMENTS The appellant challenged his Honour's findings that the plaintiff's need for domestic assistance at the time of the trial was of the order of ten hours a week. The principal submissions were that his Honour had failed to properly allow for the probability that the orthopaedic component in the plaintiff's disabilities would gradually resolve over time and also that there was insufficient evidence of the plaintiff's own need for domestic assistance for her own benefit as opposed to the wider need for domestic assistance for the benefit of her husband and her surviving child. It may be accepted that the evidence did not permit any precise break up of the domestic assistance required by the plaintiff personally compared with additional domestic assistance required solely because of the presence of the other members of the family unit. However, the need for some assistance for the personal benefit of the plaintiff was in my opinion clearly proved both directly and through the medical evidence accepted by his Honour. In these circumstances his Honour was entitled and indeed bound to do his best with the evidence and to make a fair estimate of the extent to which special domestic assistance would be required for the plaintiff herself after allowing for the level of assistance which other members of the family could fairly be expected to provide. The assessment of this head of damage necessarily involves estimation and approximation both for the past and of course especially for the future. The other ground of challenge to this part of the assessment was, as I have mentioned, based upon the submission that his Honour failed to properly allow for the probable improvement in the plaintiff's orthopaedic disabilities in the future. His Honour found that according to the general body of medical evidence the pain experienced by the plaintiff in her neck, her low back and her hip region was related to soft tissue injuries she sustained to her lumbar spine and pelvis and he thought that over time her residual tenderness would resolve, although such a prognosis was by no means certain. However, in my view it is clear that on his Honour's findings the greater part of the plaintiffs disabilities which attracted this part of the award were based on injuries other than the orthopaedic ones. Apart from the plaintiff's severe accident caused deafness his Honour found that her major disabilities related to the effects of the head injury which she suffered. These were the cause of the hearing loss, tinnitus and dizziness from which she suffered. In addition, the judge found that the plaintiff suffered from headaches, had difficulties with sleeping, with her housework, problems with her memory and her ability to handle money and calculate money, and that her head injuries were the principal cause of her depression which left her lacking in energy and motivation. It seems to me that his Honour clearly concluded that the greater proportion of her incapacity was due to her head injuries and their consequences where no improvement can be expected in the future, rather than to her orthopaedic injuries. Furthermore, I think that this court should be cautious before concluding that a judge who delivered such a careful judgment failed to take into account the probable improvement in the plaintiff's orthopaedic condition when he later came to assess her needs for future domestic assistance. \GROVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v NGUYEN (Handley JAB The trial judge found that the plaintiff's condition which rendered some provision of domestic assistance necessary had stabilised by the beginning of 1987 and he made the same allowance of ten hours per week for domestic assistance for the 1987 and 1988 years as he allowed for future assistance after the trial. In these circumstances I have not been persuaded that the trial judge either overlooked his earlier findings as to the probability of some further improvement in the plaintiff's orthopaedic condition or failed to properly allow for it in his awards for domestic assistance. The other matter relied upon by counsel for the appellant related to the possibility of the plaintiff receiving appropriate psychiatric treatment in the future which might alleviate or cure the post accident depression and stress condition which the plaintiff was diagnosed as suffering. This submission was based upon the report of Dr James Maguire, a psychiatrist, who was qualified for the defendant. The principal difficulty with this submission is that the trial judge seems to have preferred other psychiatric evidence and in the end I am driven to the conclusion that the possibility of any substantial improvement in the plaintiff's mental and psychiatric condition in the future is really entirely speculative. It is clear from his Honour's awards that his Honour made no allowance for any such future improvement and I have not been persuaded that his Honour erred in this regard. Dr Dent described the plaintiff's head injuries as follows. He said that she had a degree of dementia in the form of a permanent and irreversible change in brain function, which had a negative effect on her work capacity and her capacity in the family and social environments, that she was suffering from dysthymia, which was a depressive neurosis rendering her less able to respond positively or in a normal way to life's stresses and that she was suffering from chronic post traumatic stress syndrome which was real, although he pointed out was mild. Dr Dent thought there was a need for the plaintiff to consult a psychiatrist and submit herself for treatment but his view was that she will remain incapacitated in the foreseeable future and possibly permanently. In the light of this evidence which the trial judge seems to have accepted I have not been persuaded that he erred by failing to allow for future improvement in her mental condition. The other matter that was the subject of some challenge was the allowance for future wage loss, but in the end this was not pressed by Mr Shore for the appellant and it calls for no further comment from me. There is one remaining matter. It is clear that the allowance made by the trial judge for the first six weeks after the accident for domestic assistance, namely $3780, exceeded the maximum allowable by law pursuant to s35C of the Motor Vehicles (Third Party) Insurance Act 1942 as amended in 1984. The difference is $1643.40. To this extent the allowance made by the trial judge for domestic assistance was contrary to law and in my opinion the court is required to adjust the overall award to exclude this unlawful allowance. This matter could have been dealt with by the trial judge after judgment under the slip tule. In my opinion therefore subject to a variation in the judgment by removing the excessive allowance for domestic assistance for that six week period, the appeal should be dismissed with costs. I would vary the judgment of the trial judge by reducing it by the sum of $1643.40 to $356,848.70. 4 UNREPORTED JUDGMENTS Clarke JA I agree. Samuels AJA I agree. CLARKE JA: Subject to the variation of which Handley JA spoke, the appeal is dismissed with costs. Vary the judgment of the trial judge by reducing it by the sum of $1643.40 to $356,848.70. Subject to above variation, appeal dismissed with costs. Counsel for the Appellant: HG SHORE, Instructed by: GOVERNMENT 0 INSURANCE OFFICE OF NEW SOUTH WALES Counsel for the Respondent: AS MORRISON, Instructed by: MICHELL SILLAR McPHEE MEYER