FITZSIMMONS v TROTTER SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY, MEAGHER and HANDLEY JJA 5 November 1993, 5 November 1993 [1993] NSWCA 97 DAMAGES — personal injuries — motor vehicle accident — woman 34 at injury — nurse with good employment and domestic history — grossly painfully injury to shoulder and ann — nerve block and opiate drug treatment undertaken — plaintiff found genuine by doctors and judge — judgment (with interest) $708,408 — appeal on ground that excessive — held: (Kirby P; Meagher JA and Handley JA concurring) (dismissing appeal): (1) There was no relevant error in the judge's understanding of the plaintiff's medical evidence relied on; (2) There was no unacceptable differential between allowances made for future home care and medical treatment allowances; and (3) The allowance under s79 Motor Accidents Act 1988 of 50 per cent of general damages was not erroneous having regard to the prolonged proved pain and disruption of the plaintiff's life; (4) Appeal dismissed. Motor Accidents Act 1988,s79. Kirby P Before the Court is an appeal from a judgment entered by Loveday J on 19 March 1992 in favour of the respondent. His Honour entered judgment in favour of the respondent for the sum of $708,408.88. That sum was made up as follows: General damages for pain and suffering (50 per cent $ 99,000.00 of a worst case) Out-of-pocket expenses (agreed) 129,599.00 Past economic loss (20 weeks at $364.50, 1 July 104,959.00 1988 to healing at $26,276.00 per year, Fox v Wood included) Future economic Loss 250,000.00 Future medical expenses ($277 per week for 3 120,000.00 years, plus $138 per week for 36 years, less vicissitudes) Future care ($212.50 per week for 5 years, plus 85,000.00 $100 per week for 20 years, less vicissitudes) Future transport expenses 10.000.00 SUBTOTAL 806,804.00 Less amounts to be paid back 127.395.12 TOTAL 679,408.88 Plus interest on wage loss (15 per cent for 2 years 25,000.00 on $75,000) Interest on general damages (4 per cent for 2 years 4,000.00 on $50,000) TOTAL $708,408.88 A motorist receives painful injuries 2 UNREPORTED JUDGMENTS The facts can be briefly stated. The respondent was born in 1953. She was thirty-nine years of age at trial. She is now forty years of age. Her life was uneventfull, from the point of view of what was to happen to her, until an accident occurred on 30 October 1987. She had married in 1971. She had completed a course of nursing in 1972. She had obtained work first in the Manning District Hospital and then in a private pathology service in 1979 and 1987 respectively. Her life was proceeding in a perfectly ordinary way until the accident. The accident took place in circumstances in which a vehicle in which she was travelling was side clipped, as I think I can describe it, by the corner of a fast moving semi-trailer. The accident appeared, at first, not to be serious. The respondent continued to participate in a camp to which she was then proceeding. Subsequently, the accident took her to hospital, the removal of glass from her aim, and the development of a very severe disability in the right shoulder and elbow. That disability has resulted in a chronicle of hospital and medical treatment. Most of the treatment has been addressed to the pain which the respondent has suffered. The pain has been so great that she has submitted to an interscalene block in July/August 1990 at St Vincent's Hospital, Sydney and opiate epidural drip over two weeks in May 1991. The details of the treatment are set out in the judgment of Loveday J. The primary judge accepts the plaintiff's genuineness It is important to note that, at several points in the judgment, his Honour, who had the advantage of seeing the respondent and her witnesses, expressed his complete acceptance of her truthfulness. For example, at 339 of the appeal book, he said: "I have no doubt Mrs Trotter is completely genuine and her problems are real ones. I cannot remember in my experience any plaintiff with such a history of intense pain. One only has to read the hospital records in evidence and to consider the numerous treatments she has undergone to be impressed by the extent of her pain. I accept the plaintiffs doctors in preference to those relied upon by the defendant. " And, at 340, his Honour, quoted Dr Chapman with approval and cited Dr Chapman's opinion: "Mrs Trotter impressed me as a very genuine straight forward and reasonable person with a severe chronic neuropathic pain disorder. " And, at 341: "T do not believe Mrs Trotter is exaggerating her pain. Her evidence and her manner of giving it conveyed just the opposite. There is no doubt that she has suffered disabilities comprising substantial limitation of movement and loss of function in the right shoulder and side and also from the various limitations caused by the sympathetic dystrophy. " It was against these findings relating to the respondent's honesty and acceptability as a witness that this Court must approach the challenges in this appeal. The challenge to the assessment of the medical evidence The challenges are three. The first is that, in a passage of his Honour's reasons, his Honour mis-stated, or misinterpreted, the differential opinions of Dr Stevens and Dr Garrick for the respondent. The passage complained of is at 344. It reads: "Dr Stevens, in my view, is too pessimistic as to the plaintiff's future. Dr Garrick on the other hand is unduly optimistic. His views are I think as much an expression of hope as a realistic appraisal of the plaintiff's future, remembering also that he has not treated her since May 1991. " URJ FITZSIMMONS v TROTTER (Kirby P) 3 The Court has been taken to an analysis of the opinions expressed by Drs Stevens and Gamck, both in their written reports which were admitted into evidence, and in their oral evidence. The examination of the evidence sustains adequately the expression of opinion of Loveday J in the summary of his impression of the evidence of the two witnesses. The point which Dr Stevens was emphasising, at page 57G-H and 57K, was a general pessimism that the respondent would ever return to work, or at least work of the kind which she had been performing without disability prior to the accident. As well, at 98, Dr Stevens expressed a rather pessimistic view that the respondent would, into the future indefinitely, require about one-tenth of a year for attendance as an impatient at hospitals. Dr Garrick was, by comparison, more optimistic about the respondent's capacity to return to work. He was less pessimistic than Dr Stevens about the respondent's need to undergo repeated hospitalisation. The first ground of challenge to his Honour's assessment of damages, therefore, fails. By so concluding, I would not want to be taken as having accepted the premise in the appellant's argument. Even if it had been shown that, in this particular, his Honour's reasons had misunderstood the precise detail of the differential evidence of Dr Stevens and Dr Garrick, it would not necessarily have affected the total assessment of damages. This rested, as is usual in this kind of case, upon more general considerations than the minute determination of the differential between Dr Stevens and Dr Garrick upon two matters of opinion. The challenge to the allowances for home care and pain treatment The second argument had, on its face, more substance. His Honour allowed for home care for the respondent an amount of $212 a week for five years and $100 a week for twenty years. For medical treatment, for the control of her pain, he had allowed $277 a week for three years and $138 a week for thirty-six years. The appellant pointed to the difference between these sums and to the different durations of the suggested need for home care, on the one hand, and medical treatment, on the other. It is clear, given the table life expectancy of the respondent at trial, ie thirty-nine years, that his Honour approached the allowance for medical treatment on a whole of life basis. On the other hand, home care cuts out after a somewhat shorter period. The appellant argued that this suggested a disproportion in the amount allowed for these two elements which, in logic, ought to have marched in harmony. At first, I was inclined to think there was a point here which might require recalculation, at least of this component of the damages. However, upon closer study I have concluded that the point is not one which requires this Court to intervene. The disharmony between home care and treatment for pain could, as was pointed out during argument, actually have favoured the appellant. It is possible that the home care should have extended, and might on a re-calculation and a minute examination of the evidence, have extended over a period longer than the twenty years allowed by Loveday J. On the other hand, an explanation, although not one proffered by his Honour, could be that he took into account the possibility that, at a certain point in her future life, the respondent would enter a retirement village or a home for invalid persons and would not require home care as she does at the present. There is no logical requirement for an exact and precise equivalence between either the duration or intensity of medical treatment to alleviate pain and of home care. It is true that some general harmony might be 4 UNREPORTED JUDGMENTS expected. I believe that there is a general harmony in the two components allowed by Loveday J. They each provide a period where there will be a more intense need respectively for medical treatment and home care. Then a much longer period is allowed where the need is less intense. It would have been a more powerful argument for the appellant if his Honour had allowed for medical treatment over a shorter period and home care for a longer period. But that is not what his Honour did. Looking at this component in the damages as a whole, whilst I think the point was arguable, I am not minded to consider that the argument demonstrates an error in the final judgment which his Honour entered. I would therefore not, on this ground, disturb that judgment. The challenge to the award of statutory General damages That leaves the third criticism of his Honour's calculations. This concerned the allowance which he made pursuant to the general damages provision in s79 of the Motor Accidents Act 1988. His Honour allowed $99,000, being 50 per cent of the statutory sum for the maximum being for "a most extreme case". It was suggested that this allowance was excessive. An appropriate allowance would have been about one-third, ie $66,000. So the appellant argued. Counsel for the appellant candidly and accurately said that it was difficult to explain by 33%, and not 50%, was the proper proportion and amount. There is, as this Court has pointed out before, an element of artificiality both in the statutory presumption which lies behind s79 of the Act and also in the calculation of the sum appropriate to the individual case. Allowing for that artificiality and the fact that the appellant bears the obligation of showing error on the part of the primary judge, I do not consider that error has been shown in this case. The undisputed evidence in this case showed that as a result of the injuries the respondent suffered gross pain. Her life was completely disrupted and severely impaired. She is still required to was with circumspection. She cannot sit for long periods in one place. Her whole life has to be geared around managing the pain which the judge accepted and which the medical practitioners whom he accepted thought to be genuine and unexaggerated. There is no inherent logic in asserting that, for such a disrupted life, an allowance of 33 per cent is right, and 50 per cent is wrong. In my opinion, no error on the part of his Honour in his calculation has been shown. I would not, on this basis, disturb his Honour's calculations. Conclusion: appeal dismissed I therefore return to the judgment. It would perhaps have been sufficient in this case for the Court simply to have said, for the reasons given by Loveday J, that the appeal should be dismissed. The judgment, although at first blush seeming to be very high, is sustained by the evidence which his Honour accepted. I have responded to the arguments put before the Court by the appellant out of courtesy to the appellant. But it is my view none of those arguments succeeded in disturbing the judgment. The order of this Court should therefore be that the appeal is dismissed with costs. Meagher JA I agree. Handley JA I agree. Kirby P: Appeal dismissed with costs. Counsel for the Appellant: R J B St John QC / G R Petty URJ FITZSIMMONS v TROTTER (Handley JA) Counsel for the Respondent: C R Evatt Solicitors for the Appellant: Stephen Mills Solicitors for the Respondent: Trevor Carter