ROBERTSON v DARCY SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL CLARKE JA, MEAGHER JA and HANDLEY JA 3 November 1993 [1993] NSWCA 239 DAMAGES — NO QUESTION OF PRINCIPLE Clarke JA. This is an appeal from a judgment given by the late Judge Lloyd-Jones QC on Friday 23 November 1990. His Honour was called upon to assess damages in a claim by the respondent and in due course his Honour assessed damages at $88,922. The damages were made up as to $60,000 general damages; impairment of future earning capacity, $12,500; out-of-pocket expenses, $2,422, and the balance was interest. The components for general damages, future loss of earning capacity, and interest are all challenged. The respondent was born in 1950 and at the time of the accident, 15 May 1985, was 34 years old. The case came to trial in November 1990 when she was just 40 years old. Prior to the accident she had suffered a head injury, which left her with no continuing disability, and, more relevantly, asthma. Her asthmatic condition was ultimately diagnosed as emphysema and was quite disabling. In the accident she sustained what has come to be regularly described as a whiplash injury to her neck, which she said left her with permanent disability. She also asserted that while she had not lost any income of a consequence of her injuries to the time of trial therewas a prospect that they would interfere with her chance of earning moneys in the future. It was in respect of this claim that his Honour allowed $12,500. In opening the appeal counsel for the appellant submitted that this was at best a moderate whiplash injury and that an assessment of $60,000 was out of all proportion to what had been disclosed by the evidence. In addition, he sought to explain the verdict by pointing to what he described as a number of mis-statements of the evidence by his Honour. According to the argument, his Honour has either misunderstood or mis-stated the evidence so as to make the respondent's condition appear worse than it actually was and thereby justify awarding such a large amount of compensatory damages. The first area of evidence to which he referred the court was a statement by his Honour that the respondent had seen Dr Mills with pain in her neck and at that time her neck was very sore and she was unable to move it. Counsel pointed out that there was no suggestion in the evidence that at the time she had been unable to move her neck. On the contrary, she had on one view very good movement, but on another view some slight or moderate limitation of movement and stiffness. On no view of the evidence, however, was there support for the conclusion that she had been unable to move her neck. Without spending too much time on this point, I think it is sufficient for me to say that, in essence, counsel is correct. The evidence demonstrated that she had stiffness at the time and that she had difficulty in moving her neck, but it was inaccurate to say that she was unable to move it. Of course, that does not mean 2 UNREPORTED JUDGMENTS that his Honour's assessment was wrong. It simply means that the court must look more carefully at the support to be found for it in the findings which were supported by the evidence. Counsel then raised a point which perhaps could be described as a trifle pedantic. He said that the evidence disclosed that she wore her collar when the pain was so extreme that she sustained paralysis in her right arm, whereas his Honour stated that she wore the collar when the pain was really bad and also when the paralysis problem emerged. For my part, Ithink counsel was here trying a little bit too hard and that the submission does not advance his case significantly at all. The third substantial complaint related to a statement, which was a gratuitous statement, which his Honour made about the absence of a report by Dr Sharpe in relation to a second visit that the respondent had had to the doctor's surgery about three weeks before the trial. Dr Sharpe had furnished a report which supported the view that the respondent was exaggerating somewhat. This report was tendered by the appellant. Arrangements had, however, been made for Dr Sharpe to see the respondent three weeks prior to the trial and this consultation was apparently carried out. At the end of the trial the following exchange took place between counsel for the respondent and his Honour. It occurred during further examination by leave. CLARIDGE: Q. Did you see Dr Sharpe for the defendant on 29 October 1990? HIS HONOUR: That's been tendered, that report. CLARIDGE: No his report of 1989 has been tendered but she saw him again this year on 29 October 1990.' It is fairly obvious that counsel for the respondent wished to make an adverse criticism of the appellant's case insofar as it had failed to tender a report from Dr Sharpe in relation to the second examination. Notwithstanding, counsel for the appellant at the trial, who I hasten to add was a different counsel from the one who represented the appellant before us, stood mute and made no endeavour to answer the inference which could be drawn from the absence of any report. Despite his inexplicable inactivity by counsel for the appellant, his Honour was entitled to draw only one inference from the absence of that report and that was that nothing that Dr Sharpe had to say following the second examination would have assisted the appellant. However, his Honour dealt with the matter in what I regard as a somewhat unsatisfactory way. Having referred to the inference which was open to him his Honour went on to say thatit was a matter of some concern that the full views of Dr Sharpe had not been put before him. He then added: There is something I do not like about the fact that an earlier medical report is tendered and the second report from a later examination by the same doctor is not tendered so I suspect that I di not really know what Dr Sharpe's assessment of her is. His Honour later made another comment which would indicate his unease about the absence of any further evidence from Dr Sharpe. In a sense, his Honour's comments have little to do with the assessment of the damages. However, counsel for the appellant made a submission, which, as it seems to me, had some substance. He said that one could infer from the judge's statements that the judge had either disregarded Dr Sharpe's expressed opinion or else treated it as a somewhat dubious one. This has been the one submission that has caused me some concern in considering the appeal. URJ ROBERTSON v DARCY (Clarke JA) 3 However, having read again the whole of the judgment and having borne in mind his Honour's acceptance of the respondent, which has not been, and could not be, challenged, I do not think it can be shown that his Honour's assessment was invalidated or affected by his disquiet concerning the Sharpe report. It seems to me that his Honour was emphasising this point as a reminder to counsel that there are dangers in patently keeping information from the court. Overall, my conclusion is that although his Honour's judgment could be criticised for inaccuracies and for the manner in which he dealt with the Sharpe report, the appeal against the award for general damages falls to be determined upon the analysis in the judgment of the evidence, including the medical evidence, which was accepted. His Honour accepted the evidence of the respondent, who said that she had, and had had for about five and a half years, constant pain in her neck which moved down into her right arm down to the elbow. On an average of twice a year the pain in her arm had become so severe that she suffered from a form of paralysis in the arm, which I will interpret as meaning that she was unable to move or use that arm. That paralysis lasted for some two or three hours. Her evidence was supported by Dr Roebuck, whose report the trial judge found persuasive. Dr Roebuck reached the conclusion that there was clear evidence of nerve root pressure. She had diminished rotation and lateral flexion of the right side of her cervical spine. She had a positive trigger point in the right trapezius muscle; she had a diminished triceps jerk in the right arm and she had hyperesthesia in the C5/6 and 7 dermatomes of the right arm. His conclusion initially was that she had a clinically recognisable cervical lesion. In his second report he repeated the view that there was clinical evidence of a disc lesion which caused persistent pain and interference with her lifestyle. He concluded: This has made her to all intents and purposes unemployable for anything but the lightest duties. Her cervical disc lesion is a direct result of the motor vehicle accident of 1985. There is no surgical or other treatment that would significantly alter her symptoms or her degree of disability. The accepted evidence points to what I would regard as a reasonably severe whiplash injury. The prospect of disability of the type described in the evidence continuing for the rest of the respondent's life is not a particularly pleasant one at all. In all these circumstances, I am unable to conclude that his Honour went beyond the bounds. I do accept the proposition that his award may be very high but I do not think it was one that was not open to him on the evidence which, as I have indicated, he accepted. I would reject the challenge to the general damages. The award for impairment of future earning capacity is very small indeed. It was made as a type of cushion to compensate the respondent for the chance that she may following the trial lose the chance to take some remunerative employment as a consequence of her injuries. The challenge that is made directed attention to the fact that she was prior to the accident severely disabled with emphysema and, the argument ran, the disabilities caused in the accident did not make her any less able to work. 4 UNREPORTED JUDGMENTS Counsel for the respondent, however, pointed to evidence given by her that there were part-time or occasional jobs available to persons who suffered from serious emphysema. In this respect she was asked: Q. There's absolutely no prospect available for you working in the future by reason of your invalidity due to emphysema, isn't that right:? Not quite. It's very close to the truth, isn't it? There is still some light duties that people with emphysema can do and still earn for themselves some sort of money from doing it. POP This evidence was not examined in depth in cross-examination, although there was an endeavour to show that she was completely unfit, quite apart from the accident-induced disability. It seems to me it was open to his Honour to accept that evidence which, after all, as a matter of general knowledge, does not offend one as being ridiculous. No doubt her range of remunerative activities would be grossly limited. But it would seem to me that some jobs, such as babysitting or work of that nature, would, notwithstanding emphysema, have remained open to her and they do not seem to be open to her now. Although I would reject the notion that the evidence supported the award of $12,500 as a cushion in the circumstances can be said to be erroneous. The final component attacked was interest and it was conceded that interest was calculated on an erroneous basis, the exercise having been carried out before the delivery of judgment in MBP (SA) Proprietary Limited v Gogic (1991) 171 CLR 657. Notwithstanding, counsel for the respondent submitted that the calculation of interest in the manner adopted by his Honour was not challenged during the hearing and that, insofar as the court was not disposed otherwise to interfere with the judgment, it would be inappropriate to allow the appeal on this ground. This Court has from time to time accepted a submission of that nature and, in my opinion, it should be accepted in this case. I would, therefore, reject all grounds. It follows that the appeal should be dismissed with costs. Meagher JA. I agree, Handley JA. I also agree. I was for a while impressed with the appellant's attack on his Honour's award for future economic loss, in the light of the principles applied by the House of Lords in Jobling v Associated Dairies Ltd (1982) AC 794. However, his Honour's award,which covered a period from age 40 to age 60, reflected a weekly loss of only $22.24 a week, the present value of $1 per week during that period of 20 years being $562. It seems to me that the presiding judge was clearly correct when he expressed the view that child-minding and similar activities would have been reasonably open to the plaintiff, despite her emphysema, but for the effects of the injury. Accordingly, I agree with the orders proposed. Clarke JA. The orders of the Court are that the appeal is dismissed with costs. In view of the fact that an offer of compromise was made, which was not accepted and which involved the respondent accepting a lower sum than she has sustained today, the costs payable to her should be assessed on an indemnity basis since 15 December 1992. Orders accordingly. URJ ROBERTSON v DARCY (Clarke JA) Counsel for the appellant: R SWEET Solicitors for the appellant: TURNER FREEMAN Counsel for the respondent: P W BATES Solicitors for the respondent: DUFFIELD and DUFFIELD