HR WALTERS PTY LTD v ATIK SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, CLARKE and HANDLEY JJA 24 March 1992, 24 April 1992 [1992] NSWCA 102 DAMAGES — motor vehicle accidents — single undifferentiated judgment — proper approach to multiple injuries — overlap of symptoms — husband rendered quadriplegic in one accident wife's loss of earning capacity. Graham v Baker (1962) 106 CLR 340 applied DAMAGES — motor vehicle accidents — multiple accidents single judgment entered — undifferentiated components notional components recalculated for purpose of appeals whether appealably excessive — whether exceed sound discretionary judgment — Turkish woman suffers trauma to neck, back and head in a series of three accidents — husband rendered quadriplegic in second accident — whether loss of economic capacity did or might lead to financial loss on her part — whether husband would have been placed in nursing home or maintained at his own home by the plaintiff — proper approach to hypothesis — proper approach to calculation of notional economic loss — Graham v Baker (1961) 106 CLR 340, 347 applied — held: (1) All three notional components of the composite judgment entered in the District Court demonstrated error requiring correction; (2) The Court of Appeal should substitute the judgments appropriate on each case and could safely do so in the circumstances; (3) The awards of general damages for the first and third accidents were excessive and should be reduced with consequences for the recalculation of interest; (4) The award of economic loss in respect of the second accident was excessive and should be reduced having regard to the absence of evidence or the unlikelihood that the plaintiff would have left her quadriplegic husband to go to work — award for loss of economic capacity reduced to $100 per week. Kirby P, Clarke and Handley JJA These are three defendants appeals against a judgment for damages in favour of Mrs Muzeyyen Atik (the respondent). Johnston DCJ, by consent of the parties, heard the three proceedings together. He concluded that there should be judgment for the respondent in the amount of $269,713.68. It was common ground that this represented the sum of the three amounts (partly undifferentiated) which his Honour had awarded the respondent in her three actions. It was also uncontested that, for the purpose of entering judgment in each individual action it would be necessary, by adjustment of his Honour's figures to derive the judgment attributable to each separate proceeding. Otherwise judgment would be entered in the stated sum in each case. affording the respondent enforceable judgments three times greater than was intended. Where proceedings are, for convenience, heard together, care must be taken in the expression of the resulting judgments to avoid error and duplication in the resulting orders. Cf Bond v Hongkong Bank of Australasia Ltd and Ors, Court of Appeal, unreported 10 December 1991; (1991) NSWJB 140. If this were the only error which had occurred in the trial, it might easily be cured. However, in each appeal, the defendant-appellants complain on other substantive grounds about the judgments inferentially intended by his Honour to be entered in each case. This Court does not afford appellate relief simply to 2 UNREPORTED JUDGMENTS review the reasoning of a judge. If whatever the reasoning and by a proper reapportionment of the component parts of the composite judgment, the resulting sum recovered by the respondent were within the range of a sound assessment of the damages due to her in the three cases, we would unhesitatingly say so. The appeals would then be dismissed. Perhaps if the only complaints in the instant proceedings related to the general damages awarded to the respondent, such complaint could be met by looking at the total sum recovered. If it were in aggregate an appropriate sum, the Court would not pause to allow the appeals simply to permit the reassignment of a different proportion of the general damages to the judgment in each action. The calculation of damages is sufficiently imprecise to restrain such feats of appellate tinkering. But the appellants complaints were not confined to the general damages. They concerned also the other components of the respective notional judgments in each case. In our view, the appellants have succeeded in showing error in the assessment of the respondent's damages. It is therefore the duty of this Court to set aside the judgment entered for the respondent. The parties agreed that there was no obstacle to this Court's reassessing the respondent's damages in the circumstances. We agree that that may be done safely, upon the basis of the recorded impressions of Johnston DCJ and the other evidence. In due course we will therefore propose a recalculation of the respondent's damages. But first it is necessary to say something about the unfortunate series of accidents which befell the respondent in the early part of the 1980's. It is then necessary to examine the judgment of Johnston DCJ. We will indicate the errors, which we perceive in his Honour's approach to the calculation of the respondent's damages. Then, we will explain our own approach. Three motor vehicle accidents The respondent was born in Ankara in Turkey in 1942. She attended primary and high schools up to the age of eighteen years. On leaving school she worked as a dressmaker. She married her husband, who was also then a Turkish national, at the age of 24 years. Whilst still living in Turkey she had a daughter and a son. The family migrated to Australia in 1973. They settled in Sydney. The respondent worked as a process worker. That work was interrupted by the birth of two more daughters. At the time of her first accident, the respondent was working as a process worker at Arnott's biscuit factory (Arnotts) near Homebush. The first accident occurred on 13 December 1982. As recounted by Johnston DCJ, the respondent was a passenger in a motor vehicle driven by her husband. The vehicle had stopped on the Parramatta Road at the Clyde level railway crossing. It was struck from the rear by another motor vehicle. The impact forced the vehicle in which the respondent was travelling through the barrier arm of the railway crossing into the path of an oncoming train. The respondent's husband managed to drive his vehicle off the track, stopping a short distance away from the point of impact. Although the respondent was wearing a seatbelt, she was thrown violently forward striking her head. She immediately felt pain in her neck and lower back. A week later she returned to her work with Arnotts. But she continued to have headaches, pain in the neck and pain in the lower back. In March 1983, the respondent suffered a further injury on her way home from work. This occurred when she fell on the footpath and broke her right wrist. This accident put her off work for eight months. She was paid workers compensation by Arnotts. URJ HR WALTERS PTY LTD v ATIK (Kirby P, Clarke and Handley JJA) 3 In June 1984 the respondent and her husband purchased a milk-bar at Brighton-le-Sands near Sydney. She worked in the milk-bar making sandwiches and serving customers. She continued to complain of pain up to a time of the second motor. vehicle accident. This took place on 3 October 1984. If the first accident occurred in frightening circumstances, the second must have been terrifying for the respondent. She was again travelling as a passenger with her husband. The vehicle was proceeding west along the Hume Highway at Bass Hill. Suddenly the vehicle crossed the median strip. It collided with an oncoming vehicle, which burst into flames. In the impact, the respondent was forced backwards and then forwards. She felt acute pain in her lower back and pain to both kneecaps. It was found by Johnston DCJ that she did not lose consciousness but was dazed and shocked. She saw her husband slumped over the steering wheel. She thought, at first, that he was dead. In fact, he was gravely injured. He was in a coma for six months. The accident rendered him quadriplegic. Following the accident, and for the first time, the respondent felt pins and needles down her right leg radiating from her lower back. She also suffered severe chest injuries with intra-abdominal bleeding, injury to the head and neck, injury to the right shoulder and right knee. However, her principal injury was to the back. She underwent physiotherapy. Her recovery was extremely slow. The third accident occurred on 14 March 1985. The respondent was alighting from a bus at Fairfield. As she was about to step off the bus, it drove off throwing her to the ground.. As found by the trial judge, the respondent fell on her right side, hitting the ground and striking her head on the concrete. She suffered lacerations to the head and pain in her right shoulder. She was taken to the Westmead Hospital where she was given a tetanus injection. At the trial there was unsurprisingly, no contest in relation to liability in respect of the first accident. Liability in respect of the second and third accidents was, however, contested. Johnston DCJ found liability established in each case. In the appeal, those findings were not contested. Thus the only contest in this Court concerns the quantification of the respondent's damages. Needless to say, the task facing Johnston DCJ was not an easy one. Differentiating between the three accidents and their respective consequences was not a simply function either for his Honour or for the respondent and her witnesses. The respondent is a whole person. She has suffered multiple trauma. She came forward as a witness honestly striving to give an accurate account of her several accidents and _ their consequences. She was accepted as an honest witness and no challenge was mounted in the appeal to suggest otherwise. In fact, by their industry and attention to the upbringing and education of their children, the respondent and her husband emerged from the pages of the appeal book as an admirable couple. In the present predicament facing the respondent, engaged in the daily care of her quadriplegic husband, it is impossible not to feel acutely the tragedy which has befallen her and her family. The appellants complain about the incorrect approach which they stated, Johnston DCJ had taken to the calculation of the respondent's damages. They asserted that there was a measure of double-counting in the compensation awarded both for general damages and serious error in the approach taken to economic 1066. It may be assumed that the expedient adopted by his Honour, in hearing the proceedings together and entering a composite verdict reflected in 4 UNREPORTED JUDGMENTS Judgment for a single sum, was designed to overcome the risk of double-counting. In the result however, we believe that the appellants complaints are made out. Three awards at first instance Johnston DCJ did not express each of the components of the three parts of the composite judgment which he announced, attributable to each of the three accidents which befell the respondent. However, most of the components of the respective judgments were identified. The only exception relates to the out-of-pocket expenses which were undifferentiated. To overcome this difficulty, the parties sensibly, and without admission, agreed for the purpose of the appeals that the out-of-pocket expenses should be shared equally between the judgments attributable to each of the three accidents. Upon this footing, the single judgment entered by Johnston DCJ can be divided so that a notional judgment is derived for each of the three actions as follows: First Accident (30 December 1982) General damages for pain and suffering $20,000.00 Interest 12,000.00 Share of total OP's 2,897.06 Notional Judgment $35,697.06 Second Accident (3 October 1984) General damages for pain and suffering 35,000.00 Past economic loss 77,089.30 Interest 41,628.22 Future economic loss 59,504.96 Share of total OP's 2,897.06 Notional Judgment $216,119.54 Third Accident (14 March 1985) General damages 15,000.00 Share of total OP's 2,897.06 Notional Judgment $17,897.06 TOTAL ASSESSED DAMAGES $269,713.68 The appellants respectively complained that each of the judgments is too high. The major complaint, reflecting in money's worth, was directed at the award of damages in respect of the second accident and especially for the amount of economic 1068 awarded to the respondent. The judgment in the first action The circumstances of the first; accident have been recounted. As found by Johnston DCJ, it occurred in a way that would undoubtedly have been an extremely frightening experience" for the respondent. It was who minor accident". It resulted in a severe impact which occasioned a whiplash injury" which his Honour described as substantial, causing the respondent considerable pain and suffering. This may be accepted. But the fact remains that the respondent was off work for one week only. When she returned to work she complained that she was still ill and that she was still feeling symptoms, particularly pain in the neck and URJ HR WALTERS PTY LTD v ATIK (Kirby P, Clarke and Handley JJA) 5 headaches. She explained that she had returned to work to quickly because she had to survive, to keep her job and to maintain the education of her children. She underwent physiotherapy but without much relief for six weeks. She took painkillers and was effectively in this state when she fell and broke her right arm. This injury put her on compensation for eight months. She never returned to her pre-injury work thereafter. She commenced work in a milk-bar business which her husband acquired. She and her husband had not been engaged so very long in that business when the second accident supervened. Thus, the case for the appellants, in respect of this part of the damages award, was that the respondent had suffered either a closed period of disability resulting from the first accident or that the disabilities which she had then suffered were swallowed up in the major disabilities which flowed from the second. So far as the contention that the proper approach to the first accident is that it should be regarded as a closed period, we would reject that argument. The respondent said, in effect, that she was half-way on the path to improvement when the second accident occurred. It is true that she returned to work after a remarkably short; absence given her injuries. But the constraints which forced her to do so, to maintain her family, were very pressing. Her return to work is by no means inconsistent with her complaints of continuing pains; in the neck and headaches. The work which she did in the milk-bar may have involved a full range of duties. But the duties were light and could, to some extent at least, be performed in the respondent's own time. She described her condition then as follows: I still continued to experience pains. I wanted to have some sort of income coming and I wanted to help the family out by helping them to earn some income. T also didn't want to just sit at home with the pains and do nothing, I wanted to keep myself busy." On 22 July 1985 Dr John Bannister, who was treating the respondent, described her condition, attributable to the first; accident thus: This lady has ongoing symptoms from her motor vehicle accident due to soft tissue injuries. Further surgical intervention is not indicated. She could not be involved in any heavy work. She could not push or pull heavy loads without suffering some aggravation. I think that eventually most of her symptoms will subside without any further treatment other than physiotherapy." Allowing for the occasional optimism of treating physicians, the picture painted, both by the medical evidence and by the respondent's own evidence, is not that of a significant ongoing disability. No organic source of the continuing symptoms following the first accident was found. Whilst the pain was continuing, it was considered likely to subside. If the first notional judgment stood alone, it would perhaps not be disturbed. But we think there is force in the appellants contention that double-counting arises if no allowance be made for the very substantial trauma which the respondent suffered in the second accident which supervened on 3 October 1984. Thereafter, this trauma effectively became the cause or at least the principal cause, of the continuing neck and back pains of the respondent. To compensate the respondent after that date in respect of those disabilities would involve the error of double-counting. In effect, therefore, the consequences of the first accident must be seen as being overtaken by the second. The first accident must thus be judged in terms of a whiplash injury to the neck and injury to the lower back occasioning pain and symptoms for less than two years. There was no effective economic loss in that time and none was allowed 6 UNREPORTED JUDGMENTS for. In these circumstances we believe that a judgment of $20,000 for general damages evidences error. That amount must be set aside. Upon a reassessment we consider that an award of $10,000 should be substituted. This adjustment has consequences for interest. It will be necessary to recalculate interest by reference to the principles expressed in Bennett v Jones and Anor 1977 2 NSWLR 355, 371 (CA) as approved in MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657. Interest in this award should be calculated at the rate of 2% for the period of 22 months to the second accident, and thereafter at the rate of 4%. This results in an award of interest to trial of $3,628.21. Judgment in the second action The appellant did not contest that component of the notional judgment of $216,119.54 in respect of the second accident which related to general damages for pain and suffering ($35,000). As we have stated, the notional share of out-of-pocket expenses was also agreed Thus, the contest in respect of the second accident, as presented in the appeal, concerns the components for past economic loss interest thereon and future economic loss (totalling $178,222.48). Although the appellant did not dispute the sum of $35,000 for general damages, we consider that this Court, if it is to proceed to a reassessment, should perform its task upon all of the parts of the notional judgment which are not specifically agreed. There was no notice of contention for the respondent. But because of the way in which the composite judgment was entered, we consider that overall justice to the respondent in the reassessments requires this course. Having reconsidered the award of general damages for ourselves, we would disturb that component of the judgment in the second action and increase it to $45,000. The appellant accepted Johnston DCJ's description of the accident, the injuries sustained by the respondent and the disabilities which followed. Specifically, it accepted the following passage in his Honour's reasons: "After this second accident the pain that the plaintiff had been experiencing prior to the first accident worsened and she began to feel sensations such as pins and needles down her right leg and this radiated from her lower back down into her leg." His Honour also clearly accepted the evidence of the respondent's adult daughter (Mrs Vurel) who described (Mrs Vurel) how severely bruised and shocked her mother was when first visited at the Bankstown Hospital following the second accident. Mrs Vurel described her mother as complaining of severe chest pain as well as pain in the back and neck. Unsurprisingly, when the respondent returned to the family home she was unable to do housework at first and complained constantly of headaches. Johnston DCJ recorded the opinions of Dr Rivett who treated the respondent after the second accident. He was of the opinion that she had suffered a severe cervical strain with associated muscle reaction. He also diagnosed a thoraco-lumbar and sacroiliac strain, with the possibility of a disc lesion causing the right sciatica of which the respondent complained. He expressed the conclusion that the respondent would be unfit for work in the long term stating: There is residual restriction and pain in the right wrist as a result of an injury caused by a fall as described. Part of the present disabilities is due to traumatic tenosynovitis which was part of the injury that is in relation to the wrist which is no part of this claim. However, in a report of August 1988, which Johnston DCJ accepted, Dr Rivett said further: 'There is continuing strain affect.ing all three regions of the spine and sacroiliac joints there is no obvious neurological involvement, there is URJ HR WALTERS PTY LTD v ATIK (Kirby P, Clarke and Handley JJA) 7 functional hyperalgesia in all four limbs, probably associated with a moderate degree of depression. There is a problem at the maximum lumbar spine at the L2 level where minimal spondylitic changes are also beginning to appear. This may represent a fairly marked injury at this level due to one or other of the accidents. Overall, this lady's condition is much the same as it was in 1984. There is possibly some functional repetition of symptoms but my impression is that she seems quite genuine in her complaint and that her organic problems are also genuine. The condition is consistent with the accident of 1982 and, in particular, lumbar aggravation by that of 1984. Mrs Atik is unfit for all forms of active work. To the extent that the appellant's reports attributed the respondent's complaints to degenerative changes, Johnston DCJ rejected them. He preferred the opinions cf the respondent's medical advisers. We will approach the matter on the same basis. The foregoing discussion of the physiological consequences of the second accident brings us immediately to the major debate in this appeal. It concerns the very substantial allowance which Johnston DCJ made for past and future economic loss consequent upon the second accident. The figure of $77,089.30 described to past economic loss was taken by his Honour from a schedule of wage loss calculations provided to him by counsel for the respondent. This commenced her claim for loss of wages from the date of the second accident and continued it to the date of the trial. The calculation was based upon the amount payable to a shop assistant. This figure was put forward upon the basis that the respondent had demonstrated an ability, after the first accident, to return to such work. In favour of the approach adopted by his Honour were a number of considerations which it is appropriate to note. The first is that the respondent had demonstrated, by her working record prior to any accident and by her swift return to work after the first accident, that she was a hard-working person. She was not inclined to sit at home feeling sorry for herself. She was devoted to her family and to their welfare. Accordingly, there does appear to be a likelihood (other things being equal) that if she had not been injured she would have continued to work at least until the children's education had been secured and possibly until the ordinary retiring age or perhaps thereafter. There is another consideration. The respondent specifically asserted that that had been her intention: Q: If you were physically fit enough would you be able to go out and get a job nowadays or not? A: Yes. Q: Who would look after your husband while you were out at work? Can he be left. on his own or not? A: No he can t be left alone but we - if I were to take the work, either we could have got a nurse or a sister from the Home Care Services to remain with him or put him in a nursing home where he could be looked after. Also you could arrange for some private sisters; to come from some private care services to come to your home. Q: Before you had your various accidents did you have any idea as to how long you wanted to stay working that is until what age. A: That's a very good question. I think to show up until the age of retirement or even longer than that if my health would have let me. As we have said Johnston DCJ accepted the respondent as a truthful witness. In the appeal, the appellant did not contest the truth of her answers. But the appellant's contention was different. It was that, whatever the subjective intentions of the respondent might have been the objective reality of her 8 UNREPORTED JUDGMENTS predicament, with a quadriplegic husband, made it virtually impossible to conceive of her returning to work and thereby leaving him without her constant care and attention. For a number of reasons we consider that the appellant's argument in this regard has great force and much more force than Johnston DCJ was inclined to give it. His Honour appears to have entirely rejected the possibility that, uninjured, the respondent would have stayed at home to look after her husband following his quadriplegia. He appears to have accepted uncritically the respondent's calculations of economic loss based upon the assumption that, had only she not been injured, she would have been back to work straight away and without the slightest interruption to look after her gravely injured husband. This strikes us as a wholly unlikely conclusion to reach on the evidence. Against the hypothesis which Johnston DCJ accepted are the following considerations: 1. The respondent came to this country from Turkey. Although there was no evidence as to her relationship with her husband, they had lived together brought up their family together and had cone through the experience of migration and resettlement together. Cultural and personal considerations would suggest to us the high probability that in his most severe predicament the respondent would have done, uninjured precisely what she has done in her injured state. That is, she would have remained with her husband to care for him as a quadriplegic requires; 2. The respondent had limited English. She gave evidence through an interpreter. Her work had been effectively, in factories as a process worker and in a milk-bar where minimal language skills would be required. This lack of language and of work skills and experience would have strictly limited her economic capacity and the skills which she could sell on the labour market; 3. There was no evidence that the respondent's husband would have consented to leave the home in which he was living with the respondent to take up residence full-time or even part-time, in a nursing home. He has not done so since his accident. He does proceed to a hospital from time to time. But this is for intensive treatment and care and not for the residential facilities provided in a nursing home. No evidence was given at the trial by the husband. No evidence was called from a nursing home. Instead, the respondent's case in this regard rested upon the evidence of her daughter Mrs Vurel, a qualified social worker. But that evidence fell far short of establishing that it would have been possible to place the respondent's husband in a nursing home so that she could have gone out to work. Mrs Vurel had made enquiries concerning an elderly male client of hers. But proof that a nursing home would take an elderly male who was homeless falls far short of establishing that it would take a quadriplegic patient. Self-evidently, the attention required for a quadriplegic is far more intensive, involving as the respondent herself described it, constant attention. The precise extent of the respondent's husband's disabilities were not proved. But since he is quadriplegic common knowledge would suggest that he would require constant attention, movement in bed and close attendance to his bodily needs. Some evidence that this is so was given at the trial by the respondent's son who adjusted his university lectures to be able to assist with his father. An essential ingredient in the respondent's case was therefore missing. This was that a nursing home existed which would have accepted the respondent's husband at the cost of his invalid pension, thereby releasing the respondent (had she been uninjured) to return to work. That ingredient was not supplied by the resident's handbook of the Rosedale Nursing Home at Marrickville which was admitted into evidence. URJ HR WALTERS PTY LTD v ATIK (Kirby P, Clarke and Handley JJA) 9 Nowhere in that handbook is there the slightest mention of caring for quadriplegics. To the extent that it is relevant the experience of the Court in quadriplegic cases (which frequently come to it) confirms what commonsense would anyway suggest. Most nursing homes will not accept quadriplegics. Because of the intensity of attention required by them, their care normally goes beyond the facilities available in a nursing home. Where provided, such attention costs substantially more than the invalid pension. Thus the incentive economically to transfer the respondent's husband to a nursing home (even assuring he was willing to go) would have been missing. It was an ingredient in the evidence never supplied at the trial.. The lack of it undermines the hypothesis upon which was built the substantial claim for loss of economic capacity on the party of the respondent; 4. As if in proof of the unrealistic premise upon which this case for transfer of the respondent's husband to a nursing home was built, Mrs Vurel gave this evidence: "MRS VUREL: I would like to see him go into a nursing home. I, ahm and then sometimes I think because he's is my father, ahm, doubtful. Q: All right. What if the situation if your mother were physically able to go out to work herself? What then about your father going into a nursing home? A: I think he would be placed into a nursing home. And she would probably be working at the shop."; and A further difficulty is presented by the hypothesis that the respondent would have continued to work in the shop. By "the shop" we take Mrs Vurel to be referring to the milk-bar. But it was eventually common ground at the trial and in this Court that the milk-bar was an uneconomic proposition. In fact, it was failing financially at the time the second accident occurred. Accounting evidence wa; called at the trial to demonstrate that this was so. Cheques were being dishonoured. Supplies were being denied. If the respondent's husband were unable to attend to his duties in the shop by reason of his injuries it is extremely unlikely that the suppliers would have maintained supplies to the respondent alone. It was inconceivable that they would do so for long without payment. In this way, the case proceeded at trial upon the hypothesis that in any event the milk-bar business would have terminated within a very short time of the second accident. In that circumstance, the respondent and her husband would therefore have been thrown onto the general labour market had no accident occurred. But we now know that the respondent's husband was grievously injured in the car accident. We can build an hypothesis upon the assumption that the respondent had not been injured in order to calculate the damages to which she is entitled by reason of the second accident. But we cannot, in our opinion, put out of account the knowledge of the gross injuries to her husband. This is something which occurred. The question for the Court is therefore what the respondent, uninjured, would have done in such circumstances. The evidence compels us to the conclusion that after the husband was discharged from hospital, some eighteen months after the second accident, the respondent, if uninjured, would probably have remained at the side of her husband and provided him with the daily care that she has afforded since his discharge. It is important to keep in mind that the respondent is entitled to compensation for the loss of earning capacity. That loss is recoverable as something which she has suffered. Her economic capacity belongs to her. She is not to be looked on by the law as a mere economic adjunct to her husband. Her loss of economic capacity is her own and for it the applicable appellant is responsible in law. But 10 UNREPORTED JUDGMENTS the authority of the High Court of Australia makes it plain that the 1066 of economic capacity, to be translated into a judgment sum, must be such that it has resulted, or might result in actual financial loss. In Graham v Baker (1962) 106 CLR 340 at 347, the Court put it thus: "To be more precise,... an injured plaintiff recovers not merely because his earning capacity has been diminished but because the diminution of his earning capacity is or may be productive of financial loss." Thus, the mere hypothetical or theoretical impact of the multiple injuries suffered by the respondent upon her "earning capacity" does not sound in money damages unless she can establish that it "is or may be productive of financial loss". See also Stenning and Anor v Johnson, Court of Appeal, unreported, 18 April 1991 per Clarke JA, 12. That is why it is essential in this case to consider whether in the circumstances the undoubted impact of the injuries in the second accident actually produced a financial loss for the respondent or may do so in the future. It is here that it is necessary to ask what would, or might, have occurred had the respondent not been injured in the second accident after her husband was discharged from hospital. If that question is asked, we believe that there is but one answer. She would have remained at his side and at home, at least for most of her time, to look after him. The more appropriate view of her loss of economic capacity is that her injuries in the second accident have been productive of financial loss in a much smaller degree than Johnson DCJ accepted. We would therefore reject the approach which his Honour took to the calculation of the respondent's damages for loss of economic capacity. Instead, we believe that the correct approach is to accept that the plaintiff would otherwise have worked full-time during the eighteen months period after the accident until her husband was discharged from hospital. From that time to the date of trial and thereafter for a further period of five years before, as found by the judge, she will have made a reasonably complete recovery, she has and will be prevented from working full-time because of the need to look after her husband. Accordingly she has only lost the benefit of part-time employment during this period which we would assess at an average of $150 per week for the period up to the trial. We would also adopt this figure as the basis of the assessment of the plaintiff's future economic loss. We would accept the respondent's written calculations of the plaintiff's past economic loss submitted to the trial judge for the eighteen months period when she could otherwise have worked full-time while her husband was in hospital. This gives a figure of $19,093.83. The plaintiff's past economic loss for the rest of the period until trial at an average rate of $150 per week gives a figure of $31,650. Interest on the sum of $19,093.85 at 8% for the eighteen months period, and thereafter at 16% until trial amounts to $14,687.57. Interest on the other component of the plaintiff's past economic loss at 8% for the period until trial amounts to $10,128 resulting in a total award of interest of $24,815.57. Judgment in the third action This brings us to the third accident. His Honour approached this on a global basis. He proceeded directed to his award of general damages of $15,000 observing: "Tt is clear that the plaintiff was certainly in no need of further trauma of the type inflicted upon her by the defendant." URJ HR WALTERS PTY LTD v ATIK (Kirby P, Clarke and Handley JJA) 11 The appellant was obliged to accept the respondent as it found her. By the time of the third accident, she was a person who had suffered multiple trauma in the past. She was extremely vulnerable to the effects of a further accident. That accident was also an unpleasant one. It involved her falling on her head and suffering lacerations and abrasions. However, an examination of the contemporaneous medical evidence does not support the contention that the respondent suffered concussion still less a loss of consciousness in the third accident. It is true that she is recorded as having later told one of the medical practitioners (Dr V Maniam) that she had been rendered unconscious. But there is no absolutely contemporaneous evidence to that effect. Instead, this is what she said in evidence: "Q: Up till the time you fell from this bus how had you been feeling with regard to your previous injuries? A: I was still continuing to experience the pains I was experiencing before in the same level. Q: What effect if any did this fall have on your previous injuries? A: Because of this accident I had new injuries and I was worried because of the had a cut to my head. Apparently some small stones lacerated my head and these was blood coming out and my kids took me to Westmead Hospital and they had to give me a tetanus injection. Q: And what about the problems you had from the first two accidents was there any effect on these from your fall out of the bus? A: I really couldn't compare the difference because I was still experiencing a lot of pain before that and I continued to experience that pain afterwards." Dr Y Bulbulia, who treated the respondent; in respect of the third accident recorded this history: "As a result she sustained a laceration over the right side of her head, bruising over the right shoulder and right hip. She attended the Westmead Hospital and was given an injection of tetanus and X-rays taken did not reveal any bony injury. She also aggravated a pre-existing low back injury." Dr Bulbulia found that in the third accident the respondent had suffered: "\.. a soft tissue injuries (sic) to her right shoulder, right hip and head and aggravated a pre-existing low back injury in the accident described above." Whilst a fall from a bus onto concrete hitting the head is such an injury as could possibly cause concussion and loss of consciousness, there is no evidence that this is what occurred in the present case. The respondent did not give such evidence at court. Her treating doctor did not record that history. The notes of the Westmead Hospital to which she was admitted were not tendered to demonstrate that it was so. In such circumstances, we believe that the injuries sustained must be approached for assessment upon the basis of the respondent's evidence and Dr Bulbulia's report. In short, the injuries to the respondent's head were of passing significance. What the third accident did was to aggravate the low back pain which the respondent had continued to suffer from the earlier trauma. In our opinion the award of $15,000 for this comparatively minor aggravation is appealably excessive. It should be set aside. The sum of $5,000 should be substituted. Recalculation of damages We now re-present the recalculation of the respondent's entitlements to damages in the three actions: First Accident JOBNAME: No Job Name PAGE: 12 SESS: 1 OUTPUT: Wed Oct 24 09:20:30 2007 /reports/caseml]/case/urj/9201922 12 UNREPORTED JUDGMENTS General damages for pain and suffering $10,000.00 Interest on part general damages 3,628.21 Share of total OP's 2,897.06 $16,525.27 Second Accident General damages for pain and suffering $45,000.00 Past economic loss 50,747.85 Interest on past economic loss 24,815.57 Future Economic Loss 34,800.00 Share of total OP's 2,897.06 $158,260.48 Third Accident General damages for pain and suffering $5,000.00 Share of total OP's 2,897.06 7,897.06 Total of Damages in All Three Actions $182,682.81 Orders As a result of the foregoing, the orders which the Court makes are as follows: 1. Appeal allowed; 2. Set aside the judgment of his Honour Judge Johnston dated 14 December 1990; 3. In lieu thereof: (a) in District Court action number 19121 of 1984 between Mezeyyen Atik and H R Walters Pty Ltd and Arthur Bourne enter judgment in favour of the plaintiff in the sum of $16,525.27 together with her costs; (b) in District Court action number 28721 of 1985 between Muzeyyen Atik and Government Insurance Office of New South Wales enter judgment in favour of the plaintiff in the sum of $158,260.48 together with her costs; and (c) in action number 22541 of 1986 between Muzeyyen Atik and the Government Insurance Office of New South Wales enter judgment in favour of the plaintiff in the sum of $7,897.06 together with her costs. 4. The respondent to pay the appellant's costs of the appeals but to have in respect thereof, if otherwise so qualified, a certificate under the Suitors' Fund Act 1951. Counsel for the Appellant: G Petty Counsel for the Respondent: M Williams Solicitors for the Appellant: Government Insurance Office of New South Wales Solicitors for the Respondent: Gibsons