KNOX v SALVADOR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, HANDLEY and SHELLER JJA 5 July 1994, 5 July 1994 [1994] NSWCA 168 DAMAGES — motor vehicle accident — whether the assessment by the trial Judge of damages for non economic loss as being 15% of a most extreme case was wrong — held: it was not — no question of principle. ORDER Appeal dismissed with costs. Clarke JA I will ask Handley JA to give the first judgment. Handley JA This is an appeal by the plaintiff from the assessment of her damages by his Honour Judge Mahoney QC. The plaintiff was injured in a motor car accident on 23 October 1988 shortly before her sixty fourth birthday. The trial Judge awarded damages amounting to $30,247.85. The plaintiff's appeal is directed solely at his Honour's award for non-economic loss. His Honour assessed this pursuant to s79(2) of the Act as being fifteen per cent of a most extreme case resulting in an award based upon the prescribed maximum at the date of judgment of $14,150. The appellant has challenged his Honour's assessment of the plaintiff's damages for non economic loss as being no more than fifteen per cent of a most extreme case. As I have said, the plaintiff was nearly sixty four years of age at the date of the accident and nearly sixty nine at the date of judgment, she then having a life expectancy of some sixteen years. There was no doubt that the plaintiff suffered serious injuries in the accident. His Honour found these to be a fracture of the sternum a compression fracture of the eleventh thoracic vertebra, a soft tissue injury to the lower portion of the right leg and shock. He also inferred that she had sustained severe soft tissue damage in the areas overlying the sternum and spinal fractures. The immediate consequences of the accident, as found by his Honour, were excruciating pain in her torso to such an extent that she experienced difficulty both in speaking and breathing. She continued to suffer severe pain following her discharge from Sydney Hospital a few days after the accident. This was eventually diagnosed by Dr Seaton, an orthopaedic specialist, to whom she was referred by her general practitioner, as due to an increase in the compression at her eleventh thoracic vertebra. As a result of her injuries the plaintiff also suffered from a mild anxiety state but the psychiatrists qualified for the plaintiff and the defendant agreed that although this would continue it would not become disabling. Unusually, in cases of this kind, it transpired during the trial that the plaintiff had consulted Dr Miller, an orthopaedic specialist, a few days before the accident for her pre existing back condition. His report to the plaintiff's general practitioner dated 20 October 1988 was tendered in evidence by the defendant. His Honour accepted Dr Miller's assessment of the plaintiff's pre existing back condition as substantially accurate. 2 UNREPORTED JUDGMENTS He found that she was then suffering from a variety of symptoms all of which were being treated prior to the accident. She had a lower back complaint and a pre existing scoliosis. She had suffered from back ache for some twenty to thirty years previously, had been receiving treatment in the form of physiotherapy and osteopathy, and had been taking a number of non steroid drugs. Her condition was worsening slowly and in the words of Dr Miller, "is present now all days. It is felt mainly over the mid chest on the right side posteriorly and spreads up to her neck and down over the lumbar area." His Honour found that whatever level of painful symptoms she had been suffering before the accident was greatly exacerbated by the accident which also subjected her to additional pain and suffering of a very intense kind in the weeks immediately after the accident in the area of her chest, dorsal spine and right leg. It is clear from a reading of his Honour's judgment as a whole that these findings related to the immediate post accident period and do not refer to the plaintiff's condition thereafter down to the date of trial. In that respect his Honour accepted the views of Dr Fuller that the plaintiff's kyphoscoliosis and osteoporosis had been aggravated by the accident as were the symptoms from those conditions which she had been suffering before the accident. He also accepted that almost all basic household chores had been made more painful for the plaintiff to perform so that she needed help in the house to a greater extent than previously. His Honour found that there had been some improvement since the accident but by the time of the trial there was no prospect of further improvement and if anything the future would be not as rosy. Counsel for the appellant, Mr Morrison, has submitted that in the light of his Honour's findings, which he did not challenge, the appropriate award was greater than fifteen per cent of a most extreme case. In other words, his submission was that the award was really inconsistent with and failed to fully reflect the findings made by his Honour. His Honour said that his award was made in the light of his findings about the plaintiffs present injuries and disabilities but "bearing in mind her state of health before this accident". His Honour also said that he took into account the age of the plaintiff and that had she been a much younger woman the verdict he awarded would have been significantly higher than fifteen per cent. He said that he was satisfied that the consequences of the accident in one way or another would accompany this plaintiff to the grave and that it was merely her age which kept the verdict as low as it was. His Honour did not expressly accept the evidence of Dr Seaton called in the plaintiff's case. He was one of the treating doctors and, indeed, he was the treating specialist after the accident. He was the only doctor who gave oral evidence at the trial. Nevertheless, it appears to me that his Honour's findings indicate an implied acceptance of Dr Seaton's evidence, particularly the evidence that he gave after his attention had been drawn to the history recorded by Dr Miller in his report of 20 October 1988. Dr Seaton said that the plaintiff's condition prior to the accident had been "quite severe", that to a significant degree the plaintiff's condition had settled down by October/November 1989 although he considered that there had been a permanent aggravation of a significant kind. He agreed that even without the effects of the accident the plaintiff by the date of trial would have been required in any event to take pain killing drugs and her lifestyle and her ability to do housework would have been significantly affected. URJ KNOX v SALVADOR (Sheller JA) 3 In my view, these are significant findings which must be considered in assessing the real impact on this plaintiff, severe though it was, of this accident. It is also clear that his Honour did not err in principle in taking into account the plaintiff's age as one of the circumstances which should properly be reflected in his assessment of her non economic loss (see Reece v Reece, Court of Appeal, unreported, 28 February 1994). There is no doubt that the award based on fifteen per cent is on the low side. However if his Honour treated the plaintiff's pre existing condition and the way in which it would have naturally progressed without any trauma, as being responsible for a loss of 7 1/2 per cent or 10 per cent of a most extreme case the total effect of both the accident and her pre existing condition would be of the order of 22 1/2 per cent to 25 per cent. Such an analysis, bearing in mind the plaintiff's age, indicates to me that his Honour's award did not fall outside the range of a sound exercise of a judicial discretion. I have not been persuaded that the assessment on the basis of 15 per cent is vitiating by any appealable error. I would, therefore, propose that the appeal should be dismissed with costs. Clarke JA: I agree. Sheller JA I also agree. Clarke JA: The order of the Court will be the appeal is dismissed with costs. (Discussion ensued.) The appellant has sought a special order for costs on the basis of an offer of settlement which was made by the respondent which was in the result more than 20 per cent less than the amount awarded by his Honour. There are many complexities in the argument which really relate to a change in the legislation made only last month which according to the appellant destroyed, or went a long way towards destroying, a good ground of appeal. Tam not convinced that the change in the legislation did destroy a good ground of appeal and nor am I convinced that the ground was in any sense a lay down misere as counsel earlier suggested. It seems to me that there are a number of considerations here including the apparent reasonableness of the offer that was in fact made by the respondent in the light of the information it then had which should lead the Court to refuse to make any special order. So the order suggested by Handley JA should stand. HANDLEY JA: I agree. Sheller JA: I agree. Appeal dismissed with costs. Counsel for the Appellant: AS MORRISON SC/DJ HOOKE Instructed by: STACKS - THE LAW FIRM WITH GOUDKAMP MAHONY Counsel for the Respondent: DJ RUSSELL Instructed by: GM MEADOWS