SAMIOS v ROYAL PRINCE ALFRED HOSPITAL SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CLARKE and HANDLEY JJA, and SAMUELS AJA 14 August 1992, 14 August 1992 [1992] NSWCA 219 DAMAGES — JURY VERDICT INADEQUATE — RE-ASSESSMENT. Clarke JA This is an appeal from a judgment in favour of the appellant in the sum of $7,500 which was entered following a jury trial in which the jury found a verdict for the appellant in the sum of $14,056.46. The appellant had sued the respondent for damages for injuries suffered on 17 January 1986 in the course of her employment by the respondent. Her case on liability was that she slipped on a caterpillar in circumstances which established negligence on the part of her employer. In that incident she suffered an injury to her left elbow and left knee cap. She also sought to claim damages in respect of further injuries to her left knee which were caused when she was knocked over by a Doberman on 8 December 1987. It was her case that these later injuries were causally related to the earlier negligence of the respondent. It was agreed at the trial that the treatment expenses and wage loss consequent upon the first accident amounted to $7,056.46. Evidence on the issue of damages came from the appellant, Dr Holman, the surgeon who treated her in respect of the first accident and Dr Stally who treated her in respect of the second accident. The respondent called no medical evidence. As I have already indicated, the jury found in the appellant's favour on the issue of liability and assessed damages in the sum of $14,056.46. It is apparent therefore that the jury assessed general damages in the sum of $7,000. The difference between that figure and the judgment represented interest allowed on the general damages. In accordance with the principles which govern an appeal against a jury verdict upon the basis of perversity or upon the basis that it is against the evidence, it is proper to approach the appeal upon the assumption that the jury were not satisfied that the disabilities which resulted from the second incident were to be laid at the feet of the respondent. Having said that, I should add that there was no real dispute about either the appellant's statement of her injuries and disabilities or the opinions of Dr Holman and Dr Stally, and one is therefore required to compare that evidence with the award made by the jury. The appellant was aged 56 at trial. She was a left-handed person, although she wrote with her right hand. She was a physiotherapist working 20 hours a week. In the first accident the appellant suffered fractures of the left humerus and the head of the left radius, both of which involved the elbow joint. She also suffered a comminuted fracture of the left patella. The elbow fractures required open reduction with internal fixation. The left knee injury was treated by immobilisation in plaster. 2 UNREPORTED JUDGMENTS The appellant was discharged from hospital after six or seven days. She used only one crutch because her arm was in a sling. She had a period when she was in significant pain. The sling was removed after three to four weeks and the plaster after ten to twelve weeks. Physiotherapy was undertaken to build up her wasted quadriceps muscles. At the end of May 1986 she returned to work using a walking stick. She was back at work she found difficulty in using her injured arm in the course of treating patients. When Dr Holman last examined her in December 1986 he found on examination that she had a 20 degree to 30 degree limitation of extension of the elbow. He concluded that the condition of her left elbow was stationary and that pain especially with exertion and repetitive use of the arm was consistent with the injuries. At the time of that examination Dr Holman also noticed some quadriceps wasting. He thought that vigorous exercise could have improved the strength of the quadriceps muscles but that would involve increased pain during the exercise and, in any event, the appellant would be left with some residual weakness and wasting. Dr Stally, who gave evidence mainly in relation to the consequences of the second accident, was asked a number of questions about the probable future in respect of the left knee. He thought there were two quite distinct injuries, one, the fracture of the knee cap and the other the crushed fracture to the left tibia plateau. He was of the opinion that, as the patella fracture had remained symptomatic for a period in excess of twelve months, she had a small chance of developing arthritis in the fullness of time in the knee and that that chance could be broadly estimated at 15 per cent. He also took the view that the other knee fracture created a 15 per cent risk of arthritis and so he thought that overall there was a 30 per cent chance of her developing it. In addition there was a chance, albeit a much smaller one, that arthritis would develop to such an extent that at some time more than ten years after the trial the appellant may need a knee replacement and the doctor gave evidence of the cost today of that type of operation. The appellant herself said that her elbow was painful in cold weather and that she had trouble with heavy lifting and repetitive movement. For instance, she found some difficulties when she was doing physiotherapy and later had difficulties when she was involved in carrying, such as occurred when she went shopping. Because of her domestic situation she had ceased physiotherapy at some time following the accident and had taken up residence in the Isle of Skye where she had opened an antique business in partnership with one other person. Her marital situation was uncertain at the time of the trial but she was hopeful that it would result in a situation where she spent six months of the year in Skye and six months in Sydney. If her marriage did break up then she proposed spending all her time in Skye. She certainly wished to keep on the antique business. So far as her knee was concerned, it was still weak and she found that she had pain from time to time with physical activity and although there was perhaps some difficulty in separating out the actual disabilities suffered by her at the time of the trial as a consequence of each injury, it is clear from the doctors' opinions that the first accident caused a residual weakness in her knee which would result in pain from time to time and possible giving way. URJ SAMIOS v ROYAL PRINCE ALFRED HOSPITAL (Samuels AJA) 3 That recital of the injuries and disabilities suffered by the appellant demonstrates beyond any doubt in my opinion that the verdict of the jury was manifestly inadequate. It was well beyond the bounds that could and should have been awarded by any jury acting reasonably. It follows that the award cannot stand. The question then arises whether this Court can re-assess. Were it not for the factors which I am about to mention I would have taken the view that in the light of the claim in respect of the second injury the Court was in no position to re-assess. However, counsel for the appellant, in a change of position, has invited the Court to re-assess and for this purpose has withdrawn the allegation that the injuries caused in the second incident were causally related to the respondent's negligence. What counsel seeks is that this Court re-assess the damages flowing from the disabilities demonstrably caused by the first accident. Counsel for the respondent for his part has consented to re-assessment by the Court upon the terms suggested by counsel for the appellant. In these circumstances the difficulties which I had foreseen effectively disappear and in my opinion it is desirable that the Court proceed to re-assess the damage. I have already outlined, perhaps in a fairly concise form, the injuries and disabilities from which the appellant suffered and was suffering. It is clear that she will continue to have problems in the future. It is doubtful, however, whether there will be any worsening of her elbow condition because Dr Holman thought it was unlikely that she would develop arthritis in that joint. However, that is a possibility, albeit a very slight one. I should mention also that limitation of movement is a relatively small one. The knee situation is somewhat different though again there is a chance, which I have earlier mentioned, of the development of osteo-arthritis in that knee with the likelihood that there will be an aggravation or exacerbation of her symptoms. There is also the very slight risk that she may, when much older, go to surgery. Having regard to all those factors I have concluded that an appropriate award of general damages is $35,000 which should be divided for the purposes of interest calculation as to $20,000 for the past and $15,000 for the future. Interest will need to be calculated at the rate of 2 per cent. Because the worker's compensation defence equates the out-of-pocket expenses, the Court can merely disregard those expenses. ORDER In the circumstances I would allow the appeal, set aside the judgment at first instance except as to costs and in lieu thereof direct the entry of judgment for the appellant in the sum of $37,280. Such judgment to take effect from 26 September 1991. I would order the respondent to pay the appellant's costs of the appeal and to have, if qualified, a certificate under the Suitors Fund Act. Handley JA I agree. Samuels AJA I also agree. CLARKE JA: The order of the Court will be as I have indicated. It can be noted that the respondent has paid $7,500 towards the judgment. Counsel for the appellant: GR Petty Solicitors for the appellant: Carroll and O'Dea 4 UNREPORTED JUDGMENTS Counsel for the respondent: RS McIlwaine Solicitors for the respondent: Hunt and Hunt, Eastwood