MANUEL v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, HANDLEY JJA and SAMUELS AJA 11 August 1992, 11 August 1992 [1992] NSWCA 146 DAMAGES — NO QUESTION OF PRINCIPLE. Clarke JA This is an appeal from a judgment of his Honour Judge Levine delivered at Broken Hill on 7 November 1990. The appellant had sued the Government Insurance Office claiming damages in respect of injuries she received in a motor vehicle accident on 13 January 1986. His Honour found that liability was established and assessed her damages at $43,982, further noting that she had been involved in an earlier motor vehicle accident in March 1985 and that a claim in respect of injuries then received had been settled. The judgment was made up in the following way: Out of pocket expenses $3,877 Interest on out of pocket expenses $1,860 Past medication $3,000 Future medication $1,300 General damages $30,000 TOTAL $43,982 The appellant has raised two grounds of appeal, one, the general damages were inadequate; two, his Honour was in error in failing to allow for the appellant's impaired future earning capacity. The trial judge in a concise judgment observed that the principal areas of injury and complaint were the right shoulder, the thoracic spine and headaches. His Honour did not say anything more about the original injuries and it is, I think, necessary to identify more precisely the injuries from which the appellant suffered and in respect of two at least in which there was no dispute. A convenient summary of the injuries is to be found in the report of Dr McEwin dated 16 May 1990 where it is said that the appellant suffered the following injuries: "1. Fracture of the right scapula. 2. Wedge facture of the eleventh thoracic vertebra and also damage to the upper surface of the tenth thoracic vertebra with consequential degenerative changes at this level between T9 and T10. 3. Strain of the right sternoclavicular joint leaving the medial part of the clavicle slightly prominent. 4. Strain of the second right costal cartilage leaving the medial aspect of the right rib anteriorly slightly prominent. 5. Migraine headaches aggravated by the motor accident. 6. Concussion." 2 UNREPORTED JUDGMENTS The complaint of a rib injury cleared up fairly quickly and the residual disabilities concerned, as his Honour pointed out, the shoulder, back and headaches. Before turning to the judge's findings which were expressed in short form, it is, I think to say something more about the appellant's disabilities. In his same report Dr McEwin observed that as at May 1990 the appellant was suffering from continuing back ache. The doctor thought that the pain was coming more from the damage done to T9 /T10 and T11 and believed that this was the area on which treatment should be concentrated. He thought she needed pain relief and continuation of Muscle exercises to strengthen her Muscles. The prognosis for the back, according to the doctor, was a guarded one as there were already Degenerative arthritic changes at T9 and T10 which may increase as the appellant ages. I interpolate the observation that the appellant was born on 16 October 1966 and is now nearly twenty-six years old. Turning to the shoulder the doctor thought this presented a very difficult treatment problem and believed that if she had recurring dislocations of the shoulder then surgery might be needed. He was unable to give a clear prognosis in relation to the shoulder because further Observation was needed. The doctor thought she was fit for clerical and similar work of the type which she was doing in 1990, although she was unfit for heavy and menial work because of the incapacity of the right shoulder and thoracic spine and was unfit for work requiring continued bending or continued use of the right shoulder particularly above the horizontal. The appellant was treated for her fight shoulder by Dr Hayes who carried out a number of procedures including an arthroscopy. In a report of 19 January 1990 he was able to demonstrate a moderate degree of antero inferior instability in the right shoulder joint. He noted that arthroscopic evaluation confirmed instability and that the joint could almost be completely dislocated in an inferior direction under direct view. He found there was some erosion over the joint surface of the numeral head at a site usually damaged during either dislocation or partial dislocation of the shoulder Joint. The doctor observed that earlier he had recommended that the appellant continue with an exercise programme aimed at strengthening the supporting muscles of the shoulder joint but noted that she had not continued with that programme because of an untimely family bereavement. The doctor noted that when he last reviewed her the appellant was making fair headway following the surgical treatment of her shoulder, although the interruption of which he had spoken had occurred. He thought that in the future she may have to consider open surgical stabilisation of the shoulder joint but at the stage at which he was reporting thought it was too early to comment on that possibility. Dr Michael Stuckey, who examined the appellant for the purposes of the court case, thought that she had sustained significant soft tissue injuries to her right shoulder and her thoracic spine in association with the fractures which I earlier mentioned. He considered that as her symptoms had indeed continued for over five years it seemed unlikely there would be any significant further improvement in the remaining symptoms and he thought that if the problem of a subluxation of the right shoulder increased she may be required to have surgical treatment of which Dr Hayes had spoken. This was, I hasten to add, a form of treatment which she did not desire for the reason that she felt she might be forced to it in the future cannot be overlooked. It is also pertinent to mention in the context of the appellant's back problems that her treating general practitioner, Dr Alexander, WAANUEL v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Clarke JAB thought that if she decided to have a family she may very well have difficulty with back pain especially during the third trimester of her pregnancies. The doctor was also of the view that she may have problems with household duties and child care in the future because of her neck and back injuries and this opinion confirmed evidence given by the appellant herself to the effect that she had some problems with domestic duties around the house. It was the appellant's case that prior to the accident she had suffered in a small way from migraine headaches. She had, she said, suffered from up to ten of these prior to the accident and since the accident she had found that she was suffering from them far more regularly and what was perhaps more worrying was suffering to a much greater extent. Indeed, according to her evidence, prior to the accident she had obtained relief by using Aspirin. Since the accident Aspirin had not been of any real assistance and she had been forced to take Ergodryl, a much more potent form of medication, and, on occasions, indeed injections to control the pain. She described in her evidence the details of the type of headache from which she suffered and also conceded that there was a family history of migraine headache. Based on the history which she gave, Dr Ormandy thought that the headaches had probably been aggravated by the trauma of the accident and the concussion which I earlier noted. Counsel for the respondent pointed out that there was conflict between what the appellant said in her evidence and a statement of history to be found in the two reports of Dr Ormandy relating to a period between the two motor vehicle accidents. In the first report dated 2 May 1985 Dr Ormandy noted that she complained of pain in the back of her neck with extended into a headache two or three times a week. In the second report dated 29 November 1985 she gave a history, according to the report, that she was suffering from headaches which had become persistent and severe. The report continues: "... She said that there was some relief of these headaches. She has also been taking Voltaren and Ergodryl for her pain and headaches." It is, I think, true to say that what appears in the history is quite inconsistent with her evidence in chief to which she adhered when it was suggested that she had given Dr Ormandy the history which I have set out. It would seem, however, that his Honour was alive to the conflict which was apparent between the history and her evidence and that lie came to a conclusion in favour of the appellant. In other words, that he accepted the evidence she had given. What lie said was that he was satisfied that she did suffer from migraine headaches before the accident but that those headaches had been aggravated in their chronicity and intensity since the accident. Although it is true, as counsel for the respondent pointed out, that on one view his Honour could have been accepting a fairly minimal increase in chronicity and intensity, the Judgment has to be seen in the light of the evidence given in the case. Nowhere was it suggested by the appellant that there had been a mild aggravation of a serious problem which she encountered before the accident in question. On the contrary her case was a definite one that before this accident she had a mild headache problem which had become significant since the accident. Furthermore, his Honour later expressed his satisfaction that the injuries and symptoms of which the appellant complained arose out of the relevant motor vehicle accident. Given the issues joined between the parties it seems to me that his Honour was clearly enough accepting the appellant's case on this issue. 4 UNREPORTED JUDGMENTS In relation to the problems concerning the thoracic spine, the respondent submitted in this Court that they were not of particular significance as they were in an area which was not particularly vulnerable. However, she gave evidence of significant difficulties in sitting or standing for any lengthy period of time and her evidence was, as I have sought to point out, supported by the opinions of some of the doctors. Furthermore, the view was expressed that there was unlikely to be any improvement but, on the contrary, the possibility with increasing arthritic changes of a deteriorating situation. It would seem to me that one cannot dismiss the back problems as relatively insignificant simply because they were located in the thoracic area. Rather, they were, as the doctors thought, a matter of significance, both concerning her ability to enjoy life and to carry out work. She had to abandon squash and horse riding which were two pastimes which she had enjoyed in the past. The first was, I think, more related to her shoulder injury, the second to her back. It was also submitted in relation to the shoulder condition that because she had not undertaken the treatment suggested by Dr Hayes, the judge was required to assess damages at a time when the permanent situation concerning the shoulder had not been reached. There is perhaps some truth in this. But there is nothing unusual in that, for judges are often asked to assess damages in a situation in which there has not been a complete resolution or settling down of a particular plaintiff's disabilities. What the judge had to do in this case was to consider what were the likely prospects in respect of the shoulder taking into account both the chances that there might be some improvement and the chances that there might be a deterioration which might lead to operative treatment. Having regard to the evidence which amplifies and expands his Honour's findings that the injuries and symptoms of which the appellant complained arise out of the motor vehicle accident, it would seem to me that an assessment of general damages of $30,000 was unreasonably low in the relevant sense, that is, that it was so low that it should not be allowed to stand. There are matters which arise for consideration in respect of the second ground of appeal which bear on the correct amount which should be allowed on re-assessment, but I will not itemise those at this moment, although I will refer to them in a general way. Having regard to the young age of the appellant when she was injured, the likelihood of difficulties in child bearing, the undoubted difficulties that she has continued to have while at work and undergoing domestic tasks, and the interference with her enjoyment of life from that very young age, it is my opinion that the correct assessment of general damages is $45,000. I turn then to the claim that there should have been an allowance for the impairment of her earning capacity in the future. It is true that after some early and significant periods off work, and a period when the appellant was unemployed, she had managed to do secretarial work since the accident and was managing to carry out that type of work at the time of trial. She said, and there is no reason to disbelieve her, that the work was very light. Nonetheless she also said that she found difficulty with it from time to time and that she had to take periods off because of the serious headaches which she suffered from. She also spoke of work which she was unable to do in a supermarket. Apparently that work required her either to stand or to sit for lengthy periods and that was beyond her capacity. Her evidence that she was able to do the secretarial work in which she was engaged at the time of trial was consistent with the medical evidence that WAANUEL v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Clarke JAB she could probably do secretarial work. But there was a significant piece of evidence given by her to the following effect: "Q. How long do you want to continue working? A. I don't know, as long as I can handle the pain I suppose, I mean it gets bad but I just put up with it, I need the money and I like to support myself so I've just got to keep going. I don't intend to keep working when it gets much worse than what it gets now though..." She then went on to say that she had not really given a lot of thought to settling down and having children although she was at the time of trial and had been for five years living with a young man. Her evidence was, as I see it, accepted by the trial judge and he said that: "\.. The medical evidence is clear to the effect that she is incapable of performing heavy work, however I am of the view that she has the capacity to perform the clerical type of work she has been doing and is now doing, but not without pain and discomfort, a disadvantage which will continue into the future..." In the light of that finding and the evidence on which it was based, a real question arises whether there has not been shown an impairment of earning capacity which is likely to be reflected in financial loss in the future (see Graham v Baker 106 CLR 340 at 347). She may, for instance, lose a considerable amount of time on account of her headaches. If that occurs she may also lose her job. In the event that that consequence ensues there may be problems in finding another job. Quite apart from that there may be deterioration in her back and shoulder condition and she may find that the pain with which she is presently putting up, becomes unbearable and that she has to give up work either temporarily in order to undertake further treatment or to rest, or even perhaps permanently. This is not a case in which one can say that there has been or is likely to be a particularly defined loss but it is a case in which, in my opinion, it would be quite wrong not to make some allowance in respect of her undoubted physical disabilities which may reflect in financial loss in the future. Obviously the allowance is not capable of any precise determination. One view it may be seen as a type of cushion. On another, a type of supplementary payment to protect her in respect of periods when she suffers from diminution in earnings received. The task of assessing the loss is a difficult one but I would propose to use the tables as a guide. Noting that her net weekly earnings at the time of trial were $309, I would think some guidance could be obtained from adopting a figure of $50 per week for a period of thirty-four years. That is, until she is just under sixty years old. Using the 5 per cent discount tables a figure of $43,295 results. It would not, however, be appropriate to allow a sum of that order because the evidence does not, in my opinion, support a finding of that magnitude. If, however, one discounts that figure by one third, one arrives at approximately the figure which would, in my view, be an appropriate amount to allow as compensation for the impairment and incapacity. Having carried out that exercise and rounding off that figure, I propose to allow $30,000. There is no reason to interfere with the other awards which went to make up the judgment, nor is there any need to add any further interest. The additional amount to be added to the verdict totals $45,000 and it would seem to follow that the amount for which the appellant is entitled to judgment is $88,982. ORDER 6 UNREPORTED JUDGMENTS Accordingly, I propose that the appeal be allowed, that the judgment below be set aside save as to costs and in lieu thereof judgment be entered in favour of the appellant in the sum of $88,982. The respondent should pay the appellant's costs of the appeal. Handley JA I agree. Samuels AJA I agree. Clarke JA: The orders of the court will be as I have set out. Counsel for the appellant: C Hickey Solicitors for the appellant: Fitzpatrick Swift Counsel for the respondent: RC Tonner Solicitors for the respondent: Government Insurance Office Of NSW (Parramatta)