KYLIE STEELE v IVAN STEELE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P CLARKE and HANDLEY JJA 24 March 1992, 24 March 1992 [1992] NSWCA 243 MOTOR VEHICLE ACCIDENT — FACIAL INJURY — DAMAGES — INADEQUATE — NO QUESTION OF PRINCIPLE Clarke JA This is an appeal by the plaintiff against a judgment of Judge Gallenin which he awarded her $31,926.65. Her complaint is that the general damages of $19,000, which were included within the judgment, were inadequate. It is clear from the amount of the verdict that the case is a relatively small one and, were it not for the concise nature of the judgment under appeal, I would have been inclined to deal with the appeal very shortly. I should say before I go any further that I do not wish to be seen to be criticising the Judge in referring to the concise nature of his judgment. I think that the case did not call for a judgment of any substantially greater length than the one given by his Honour. Nevertheless when the matter comes on appeal and there is but a short judgment it is, I think, incumbent upon this Court to go into a little more detail. The plaintiff was injured on 22 November 1981 when she was ten years old. She was a passenger involved in a head-on collision and sustained what could broadly be described as "injuries to her face". She was, at the time of the accident, in fifth form at school and before that time she had been a healthy young girl who liked to participate in sports, including netball, basketball and volleyball, and compete in Irish dancing. In the accident she suffered the following injuries - dento-alveolar fracture of the anterior of the left and right maxilla, fracture of nasal bone, loss of the upper right central incisor, loosening of the upper right lateral incisor, loosening of the upper left lateral incisor, cracked fracture of the right infra-orbital region, marked generalised oedema in the midline of the forehead, right peri-orbital oedema, bruising of the right hip and right thigh. The plaintiff was admitted to Wollongong Hospital and remained there until 1 December 1981. On 27 November 1981 Mr J Anker, maxillo-facial surgeon, attempted to fix the dento-alveolar fracture under general anaesthetic and he inserted three interdental wires which prevented the plaintiff from opening her mouth. These wires were removed at Wollongong Hospital under general anaesthetic on 2 March and approximately one month later the plaintiff returned to school. Following the second operative treatment the plaintiff underwent a short period of physiotherapy and thereafter was required to perform exercises of the jaw for approximately four months. During 1988 and 1989 orthodontic braces were fixed and the plaintiff, who has lost one tooth, has been fitted with a bridge. She has continued to suffer from a number of disabilities which I think should be described as only moderate disabilities. She has suffered from an inability fully to open her mouth. If she opens her mouth wide she experiences a cracking sensation and she finds it hurts her. She has difficulty eating meat and apples and 2 UNREPORTED JUDGMENTS other hard foods. Since the accident she has found that she is unable freely to participate in sports. The reason for that is if she jumps around she suffers pain in her face. Perhaps the most significant interference is with her Irish dancing. She has found since the accident she is unable to participate and compete in competitive Irish dancing or do any of that dancing at all. It was also said during this hearing - and one can easily accept - that she cannot engage in rap dancing. The bridge was affixed to replace, in a sense, her upper right central incisor tooth and effect some sort of stabilising of the nearby incisors. That bridge, which cost $1,800 will require replacement three to four times during her lifetime. It was also submitted that she suffered from a mild mandibular asymmetry but having regard to the medical reports which were tendered in the case I would have to say she failed to discharge the onus of establishing that any asymmetry was related to the injury she sustained in the accident. It is clear that she suffered severe facial injuries which required disabling treatment and which must have been very distressing to a young girl. Furthermore, there was, and continues to be, significant interference in her ability to enjoy sporting activities and dancing. There is not likely to be any further improvement. On the contrary she will need replacement of her dental prosthesis from time to time and, as I have indicated, has been forced to restrict her lifestyle. I would add also that facial injuries are unpleasant. For a young girl they must have been doubly unpleasant and she is indeed fortunate that she did not suffer any significant disfigurement, or really any disfigurement at all. Nonetheless one can understand the fears resulting from the injuries and disabilities that she did suffer. The trial judge, as I have indicated, considered that the general damages should be assessed at $19,000 allocating $10,000 to the past and $9,000 to the future. This is the only component which has been challenge in this appeal. For myself I think that the award reflects an inadequate appreciation of the past problems foisted upon this young plaintiff by the accident and, in particular, the pain and discomfort. The former continued, on any view, for some months and possibly even longer. The discomfort, of course, continued to the date of the trial. LT also regard the award as insufficiently reflecting the fact that for virtually the whole of her life this young lady will be left with the disabilities which I have mentioned. In my opinion the award by his Honour was so low as to justify intervention by this Court and I would propose substituting an award of $30,000 for general damages. I would allocate half of those damages to the past, and half for the future, on the basis that the worst problems were suffered in the past but the future is, of course likely to be much longer. Accordingly, I would propose that the appeal be allowed, that the judgment of Judge Gallen, except as to costs, be set aside and in lieu thereof I would propose that judgment be entered for the appellant in the sum which will reflect the increased general damages and allow interest on past general damages calculated at two per cent for the whole period. The judgment should date from the date of trial which was 11 December 1989. The respondent should pay the appellant's costs of the appeal and if qualified have a certificate under the Suitors' Fund. Kirby P I agree with what Clarke JA has just said and with the orders which he has proposed. They will be formulated in due course and entered as the judgment of the Court. At the end of his submissions, counsel for the respondent, at my invitation, made a submission that the matter should be sent back for retrial rather than that the damages should be reassessed by this Court. Counsel for the appellant had asked, on behalf of the appellant in the notice of appeal and orally in this Court, URJ KYLIE STEELE v IVAN STEELE (Handley JA) 3 that the matter should be assessed by the Court. Wherever possible the Court should re-assess if it is satisfied it can do so, in the re-hearing, without seeing or hearing the parties or their witnesses. In this case the only evidence which was given orally at the trial was the evidence of the plaintiff. She was not challenged as to her credit. I therefore believe that it is entirely safe for this Court to proceed upon the basis that the evidence she gave below was truthful and can be relied upon by this Court. So far as the dental and medical witnesses are concerned, all of their evidence was given in written form. Accordingly, this Court is in as good a position as a judge of the District Could would be to make an assessment. There is a public interest in avoiding retrials where possible. This serves both the expedition and the conclusion of the litigation between the parties and the saving of private and public costs. Accordingly, I would reject the argument that the matter should go back for retrial. I therefore join in the orders of Clarke JA as proposed. Handley JA I also agree. Kirby P: The orders proposed by Clarke JA will therefore be the orders of the Court. Counsel for the appellant: S HILL Solicitors for the appellant: LEO and MORRISON, WOLLONGONG Counsel for the respondent: C STUART Solicitors for the respondent: PETER JESSOP, SOLICITOR FOR THE GIO, HURSTVILLE