KEENAN v SKINNER BY HER NEXT FRIEND CATHERINE SKINNER SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MEAGHER, HANDLEY and Cripps JJA 24 March 1993, 24 March 1993 [1993] NSWCA 152 Question raised on appeal was whether the damages awarded were manifestly excessive in all the circumstances. Held: The amount awarded for economic loss was not excessive. The amount awarded for pain and suffering was manifestly excessive, and should be reduced by 50%. MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657 Meagher JA I will ask my brother, Mr Justice Cripps, to go first. Cripps JA This is an appeal from Judge Hosking in the District Court of New South Wales in favour of the plaintiff in the sum of $91,881 of which $60,000 was apportioned as to general damage, 50 per cent for the pain and suffering from the date of accident to date of trial and 50 per cent for the future. Notwithstanding Mr Petty's forceful submission, I think the only real issue in this appeal is whether the award of $60,000 damages for pain and suffering is manifestly excessive in all the circumstances. In 1983 the respondent, who was then aged twelve, was knocked off her bicycle. She suffered a number of injuries which are set out in the medical reports placed before his Honour and referred to in his judgment. She complained of three separate injuries: a broken ankle, a compression fracture of the seventh thoracic vertebra and also what I might compendiously describe as brain damage. The brain damage claim was rejected by his Honour, he coming to the conclusion that such disabilities as the plaintiff might have had were not in his Honour's view relevantly related to the accident and he gave reasons that her inability to function mentally was due to other causes. However, he did find in favour of the plaintiff that she had a compression fracture at the seventh thoracic level and also, of course, that she had broken her ankle. One must have regard to the circumstance that the respondent's complaints of pain were not wholly accepted by the trial judge, nor supported by the medical evidence. It is plain from his Honour's ex tempore judgment that he had regard to the medical evidence that favoured the plaintiff with respect to the injury to her spine and to her leg and it is for this reason, I think, that he made the finding which Mr Petty has seized upon; that her injuries had resolved because, for practical purposes, in large part, of course, they have. However, Dr Barnett's report, he being the treating doctor, referred to the long term niggling discomfort that she had. Dr Power also refers in his report and his Honour appears to have accepted Dr Power in terms because he referred to him in his judgment: 2 UNREPORTED JUDGMENTS "Her present symptoms consist mainly of widespread pain and I cannot equate this with the T7 compression fracture. Her pain is either totally unrelated or represents an emotional response to the injury. Nevertheless, she did sustain an injury which has the potential to cause problems in the future. Such problems would be represented by pain encircling the lower rib cage." (P 216 of the appeal book) In these circumstances I do not think it can be said that the learned trial judge erred allowing the respondent, aged nineteen at the date of trial, the sum of $15,000 as a cushion for economic loss, recognizing as he did in the judgment, that there had been no demonstrated economic loss up to that time. I do not understand Mr Petty, for the appellant, to dispute the evidence of a future possible problem existing. However, he relies on the finding. For the reasons which I have endeavoured to give, I think that a proper reading of his Honour's ex tempore judgment leads to the conclusion that he accepted part of the medical evidence with respect to the future. Otherwise he simply would have made no reference to economic loss and, as I have said, it is, for a nineteen year old, a modest sum expressed in dollars per week for the rest of her working life. However, I am bound to say I have come to the conclusion that the award of $60,000 for pain and suffering is manifestly excessive, bearing in mind the findings that I have referred to. In my view, it is appropriate, notwithstanding Mr Levy's submission, for this Court to re-assess the damages or at least that portion for general damages. Mr Levy's only real opposition to this is, I think, that contrary to the judge's expressed finding, we should conclude that he, in fact, viewed his client as lacking credit. That was not the judge's finding and I am not prepared to depart from it. He then submits that, if this Court is to assess damages again, it ought to add to the $15,000 awarded for economic loss an appropriate sum which would have the consequence that, even if general damages are reduced overall, the plaintiff would be left with the same amount of money. I do not agree. I think that the figure of $15,000 awarded by the judge for future economic loss, or as a cushion, therefore was appropriate and I do not think this Court should increase it. Iam of the opinion that the sum for general damages should be reduced by 50 per cent and should be $30,000 and two thirds of that, namely $20,000, should be apportioned to the period from the date of the accident to the date of trial and $10,000 for the future. Mr Levy has conceded, I think, although not entirely giving away the argument to the contrary, that the agreement as to rates of interest on general damages from date of injury to date of trial announced in court are effectively no longer binding and, since the High Court's decision in MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657, a different approach would have to be taken. My suggestion is that the parties be directed, if they cannot agree while we are sitting here, to bring in short minutes reflecting the plaintiff's entitlement to interest in accordance with the principle in Gogic on $20,000 from the date of the accident in 1983 to the date of trial which I think was in 1990. Accordingly, the orders I would propose are that the appeal be upheld, that so much of the verdict of the judge as awards general damages and interest be set aside and in lieu thereof the component of general damages be fixed at $30,000 and interest be given or awarded in accordance with the principles of Gogic from date of accident to date of trial on $20,000 and, as I have said, if the parties URMEENAN v SKINNER BY HER NEXT FRIEND CATHERINE SKINNER (Meagher JA) 3 cannot agree on that they should bring in short minutes, and the respondent pay the appellant's costs of the appeal and to receive a certificate under the Suitors Fund Act. Meagher JA: I agree. Handley JA I agree. Meagher JA The order of the Court will be, therefore, the orders proposed. 1. Appeal upheld. 2. So much of the verdict as awards general damages and interest be set aside and in lieu thereof the component of general damages be fixed at $30,000 and interest be given or awarded in accordance with the principles of Gogic from date of accident to date of trial $20,000 and if the parties cannot agree on that, they should bring in short minutes. 3. Respondent to pay appellant's costs of the appeal and receive a certificate under the Suitors Fund Act. Counsel for the Appellant: GR Petty Instructed by: Steven Mills (GIO Newcastle) Counsel for the Respondent: LA Levy Instructed by: Thompson Whelan and Hampshire