BURKINSHAW v BAINES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, HANDLEY and SHELLER JJA 7 July 1994, 7 July 1994 [1994] NSWCA 35 DAMAGES — motor vehicle accident — second injury — whether second injury foreseeable and causally related to the first — held: it was — no question of principle. DAMAGES — motor vehicle accident — whether award of general damages excessive — held: it was not — no question of Principle. ORDERS 1. Appeal dismissed with costs. 2. Cross appeal allowed. The judgment of the trial Judge in the sum of $202,588.60 be set aside except as to the costs of the trial. 3. That there be substituted in lieu judgment for the respondent/cross appellant in the sum of $110,028, such judgment to date from date of trial, that was 5 December 1991. There will be no order for costs of the cross appeal. Clarke JA I will ask Handley JA to give the first judgment. Handley JA This is an appeal by the defendant from the assessment of the plaintiff's damages by his Honour JB Phelan in the District Court at Gosford. The plaintiff's claim arose out of two motor vehicle accidents which occurred on 3 April and 17 May 1982. In the first accident the plaintiff was riding his motor cycle when it collided with a motor vehicle. He was thrown from his cycle onto the road and was injured. He suffered an injury to his left hand involving fractures of the metacarpal and the middle phalanx of the middle finger as well as soft tissue injuries to other parts of his hand and to other parts of his body. On 17 May, while on a holiday trip with three friends he was injured again near Kempsey. The vehicle in which the four young people were travelling stopped at Smithtown and they got out of the car and looked around the town for about half an hour and then returned to the vehicle. The driver got into the driver's seat, the plaintiff got into the front passenger's seat and the other passengers into the rear passengers seats. The plaintiff said that he reached up to fasten his seat belt and this movement of his left hand anticipated by a split second the closing of the rear near side door by the passenger in that seat. Unfortunately for the plaintiff, when the door was closed his left ring finger was jammed and the tip of the finger was badly injured. The plaintiff failed to prove any negligence against the driver of the second vehicle and he discontinued his action against his fellow passenger. His case at the trial in respect of the second injury was that it had been caused or materially contributed to by the disabilities he was then suffering as a result of the first accident. The trial judge found that the necessary causal link had been established and concluded that the second injury was a foreseeable consequence of the first and on this basis held that the tortfeasor was legally responsible for the additional 2 UNREPORTED JUDGMENTS damages caused by the second accident. The defendant's appeal challenges the findings of foreseeability and causation which underpin the conclusions of the trial judge. The judge reviewed the plaintiffs medical history after the second injury and dealt with the effect that the combined injuries had on him and awarded the sum of $102,538.60 for those injuries and consequences. This award included the sum of $21,050 for past economic loss and some other items which are not challenged. The principal component in the award was a sum of $80,000 for general damages made up of $15,000 for the physical consequences of the first accident, and $10,000 for the physical consequences of the second accident. To these his Honour added $36,000 for the anxiety neurosis which the plaintiff suffered as a result of the two injuries and a further $20,000 for the contribution made by stress in lowering the plaintiff's immunological health and inhibiting treatment of the chronic fatigue syndrome which he suffered from 1986 onwards. There has been no challenge to any separate part of these awards other than the $20,000 allowed for the contribution made by stress to the plaintiff's chronic fatigue and associated problems. However Mr Petty has challenged the award of $80,000 on a global basis as being excessive and has separately challenged the award of $20,000 as not supported by the evidence. Turning to the first issue, I remind myself of the relevant legal principles which are conveniently set out in Mahony v Kruschich Demolitions Pty Ltd (1985) 156 CLR at 528. There is no need for me to set out this familiar passage. The plaintiff in endeavouring to secure compensation from the tortfeasor for the consequences of the second accident must establish the necessarily causal link between the first and the second accident and in addition must establish that the second injury was a foreseeable consequence of the first. The determination of this question requires some consideration of the necessary evidence. The trial judge accepted the plaintiffs evidence that in the period between the first and the second accident he did not sleep properly and, clearly, this was one consequence of the initial injury. He also found that the plaintiff did not have any sensitivity of feeling in the fingers of his left hand and that this also was the direct consequence of the first injury. He accepted the plaintiff as a witness of truth and found that the accident occurred because the plaintiff had misjudged the position of his hand in relation to the seat belt and kept his ring finger straight so that it was jammed when the door was closed. There is no challenge to his Honour's primary finding of fact on this matter and on the basis of those findings he explicitly found that the second injury was a foreseeable consequence of the first and implicitly found the necessary causal link. His Honour based these findings on the view that the plaintiff was fatigued as a result of lack of sleep and that his ability to judge where his left hand was in relation to other objects had been diminished as a result of the numbness in his fingers which was one of the consequences of the first accident. His Honour concluded that it was primarily the lack of sensation which caused his second injury. Speaking for myself, I have some little difficulty with the view that the lack of sleep has been shown to have any causal effect in bringing about the second injury. The plaintiff had just returned to the car from having walked around Smithtown for half an hour and his first action after resuming his seat had been to reach for the seat belt. However, it seems to me that his Honour's conclusions URJ BURKINSHAW v BAINES (Handley JA) 3 are amply supported by the view which he himself preferred, that the primary cause of the second injury was a lack of sensation in his fingers, particularly the ring finger. The plaintiff said in evidence that having resumed his seat he reached over with his left hand to grab the seat belt, however, unusually, he grasped it between his thumb and index finger. Clearly, the ring finger was injured because it was in the wrong place when the door was closed and not around the seat belt. It is not difficult, in my view, to infer that the grasping of the seat belt between the thumb and forefinger was an unnatural means of doing so and one which was adopted by the plaintiff because of the injury to his left hand. As a result of grasping the seat belt in this way and leaving his other fingers extended, the left ring finger was in the wrong place when the door closed. Another basis for concluding that the injury to the left hand had a causal effect in bringing about the second injury is that the reduced sensation in the tips of his fingers caused him to be less aware of the location of his fingers in relation to surrounding objects. On both these bases it seems to me the trial judge was justified in concluding that the plaintiff's injured left hand caused his fingers to be where they were and how they were at the time the door was closed. I would, therefore, reject the first challenge by the appellant. The second ground of appeal concentrates, as I have said, on the award of $20,000 as one of the components in the overall award of $80,000 for general damages. After the second injury the plaintiff suffered severe depression and later contracted a viral infection which resulted in him experiencing chronic fatigue syndrome. The depression had major effects on the plaintiff including social withdrawal, agoraphobia, claustrophobia and other manifestations. The judge found that by the time of trial the plaintiff had largely conquered his anxiety condition. During the nine years between the two accidents and the date of judgment he suffered major disability as a result of his depression. The judge found, and this has not been challenged, that this anxiety condition was causally related to his earlier trauma. The challenge to the award of $20,000 was based essentially on what was submitted to be the lack of evidentiary support for it in the opinions expressed by Professor Dwyer. Professor Dwyer described the plaintiff's condition in a report made for social security purposes in July 1988 as consisting of gross fatigue and the development of neurological problems that particularly affected higher centres and thus impeded concentration and memory. The professor expressed the view that the onset of the chronic fatigue syndrome was not causally related to the two accidents but he said in his first report on 22 March 1989 that he believed that its development would be aggravated by stress. When subsequently asked to clarify this opinion Professor Dwyer said that whether or not the plaintiff had these motor vehicle accidents "it was likely that Robert would develop this syndrome which unfortunately runs in the family. However, the impaired immune performance that we believe is at the heart of the problem for such patients is very significantly aggravated by stress and indeed stress may make it much more difficult to treat patients and impedes the manner in which they may recover spontaneously. Consequently, I have no hesitation in saying that the stresses associated with Robert's accident can undoubtedly have had a deleterious affect on his chronic fatigue situation". The trial judge included this particular component to compensate for the role that stress had in lowering the plaintiffs immunological health and inhibiting his treatment for chronic fatigue syndrome. Clearly, if it had been open to his Honour 4 UNREPORTED JUDGMENTS to find that the chronic fatigue syndrome itself had been caused or materially contributed to by the trauma a much higher award would have been justified. Mr Petty submitted that there was no evidence as to the manner in which the plaintiff was being treated for chronic fatigue syndrome and there was no evidence about the particular level of stress which the plaintiff was suffering at any point of time during the years since 1986. In my judgment, the absence of such detailed evidence, which is hardly surprising in the circumstances, does not undermine the award that is challenged. The trial judge obviously inferred that the plaintiff was suffering trauma induced stress at the time he developed his chronic fatigue syndrome and any other conclusion would be an affront to common sense. I particularly refer to the plaintiffs depressive and anxiety state which must have been very stressful. It is true that there is no evidence as to how and when the plaintiff was being treated for his chronic fatigue syndrome but Professor Dwyer was the plaintiff's treating doctor for this condition and, clearly, when the professor expressed the view in question he must have had in mind the treatment which he had either given or had caused to be given to the plaintiff. To my way of thinking, the decisive consideration in the present situation is that Professor Dwyer was able to express a positive opinion that this syndrome, once it has developed for whatever reason, is "very significantly aggravated by stress". The professor has expressed an opinion which takes the matter beyond the realm of possibility into a field of probability. On this basis it seems to me the arguments of Mr Petty, well and cogently presented as they were, against the award of $20,000 and the global award of $80,000 cannot be accepted. I would, therefore, propose that the appeal be dismissed with costs. Clarke JA. I agree. Sheller JA I agree. CLARKE JA: The order of the Court in relation to the appeal is the appeal is dismissed with costs. (Argument ensued on cross claim) Clarke JA: In the respondent's cross appeal counsel has announced that he does not press ground 1 which relates to out of pocket expenses. He pressed ground 3 which was a claim for interest on past economic loss but in view of the fact that there is no evidence in relation to social security payments he has not developed any argument in support of that claim and it should be rejected. The second ground relates to a claim for interest on the general damages which interest totals $7440 to the date of trial. That is, clearly a proper claim and has not been resisted by counsel for the appellant. Accordingly, the cross appeal should be upheld to that extent. The cross appellant also seeks costs of the cross appeal on the ground that he has been successful. Mr Petty resists that application for the reason that it is clear that his Honour overlooked interest on past general damages and the cross appellant could have more conveniently sought relief under the slip rule. There is support to be found for both arguments but, in my view, the order that should be made in the circumstances of this case is that each party bear his and its own costs of the cross appeal. The orders of the court, therefore, will be as follows: 1. Appeal dismissed with costs. 2. Cross appeal allowed. The judgments of the trial judge in the sum of $102,588.60 be set aside except as to the costs of the trial. 3. That there be substituted in lieu judgment for the respondent/cross appellant in the sum of $110,028, such judgment to date from date of trial, that was 6 December 1991. There will be no order for costs of the cross appeal. URJ BURKINSHAW v BAINES (Sheller JA) 5 Handley JA: I agree. Sheller JA: I agree. 1. Appeal dismissed with costs. 5 2. Cross appeal allowed. The judgment of the trial Judge in the sum of $202,588.60 be set aside except as to the costs of the trial. 3. That there be substituted in lieu judgment for the respondent/cross appellant in the sum of $110,028, such judgment to date from date of trial, that was 5 December 1991. There will be no order for costs of the 10 cross appeal. Counsel for the Appellant: GR PETTY Instructed by: STEPHEN MILLS, NEWCASTLE 15 Counsel for the Respondent: RE QUICKENDEN Instructed by: JOHN BURTON AND ASSOCIATES, GOSFORD