WILMEN v NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, PRIESTLEY and MEAGHER JJA 10 October 1994, 10 October 1994 [1994] NSWCA 350 TRAFFIC ACCIDENT — impairment of capacity to work — whether impairment resulted in damage — assessment of future economic loss. The appellant suffered serious orthopaedic injuries in a traffic accident and received damages including awards for pain and suffering, past economic loss and future economic loss. Held: (1) It may be accurate to say that the appellant's capacity to work was impaired but that impairment did not manifest itself in any damage in the period between the appellant's return to work and the trial. (2) The appropriate response to the medical evidence in the light of the appellant's own evidence is that the award for future economic loss from the date of trial should be $90,000. Kirby P I will ask Priestley JA to give the first opinion. Priestley JA The appellant in this case suffered serious orthopaedic injuriesin a traffic accident on 12 January 1986. Her action for damages was heard and decided by Master Greenwood on 16 July 1993. The Master assessed her damages under the following headings: general damages for pain and suffering $80,000, past economic loss $12,923, interest on past economic loss $7754, future economic loss $40,000, allowance for shoe raisers $2628, allowance for future surgery $3000, treatment expenses, an agreed item, $13,322. These added up to $159,627 which the Master rounded off to $160,500 for which sum he directed entry of judgment. The appellant has challenged the awards for general damages, past economic loss and future economic loss. These challenges are based on submissions that the Master erred in making two findings of fact. One finding related to past economic loss, in regard to the claim for the period between the date the appellant returned to work after the accident and the date of trial. In regard to this the Master took the view that in the particular circumstances of the appellant's employment she had not in fact suffered any economic loss for that period. This finding was criticised as showing a misunderstanding of the evidence of Dr Martin, one of the partnership of doctors who employed the appellant. Although this criticism might be justified if Dr Martin's evidence in chief alone were looked at, it seems to me that the cross-examination of Dr Martin, which is reproduced on p 34 of the appeal papers, made it reasonable to understand the evidence differently from the way it would be understood simply on the basis of the evidence given by Dr Martin in chief. It also seems to me that it was reasonable for the Master to understand it as he did. On my reading of the evidence the Master's funding should not be disturbed. It may be accurate to say that the appellant's capacity to work was impaired but that impairment did not, on the view of the evidence which seems to me to be reasonable, manifest itself in any damage in the period concerned. 2 UNREPORTED JUDGMENTS The other disputed finding of fact concerned the possibility of future deterioration of the appellant's capacity to work flowing from the accident. There were three doctors' reports before the Master upon which he substantially based his opinion that although there was a possibility of deterioration in the future, there was little evidence to support what he called the dismal picture which was submitted on behalf of the appellant to represent the proper factual finding concerning future employment. The Master nevertheless recognised that there was a possibility of deterioration at some time in the future and for that possibility he allowed what he referred to as a cushion of $40,000. His correctness or otherwise in this aspect of his decision has been the principal matter argued in the appeal. For the appellant attention was drawn to part of the Master's reasons in which he substantially accepted the appellant's version of her situation which he said was supported by the medical reports but then referred to Dr Jones as taking a far more pessimistic view than the other two doctors whose reports were before him, these being Dr Cass, whose evidence was given by way of report in the appellant s case, and Dr Power, whose report was tendered in the respondent's case. Attention was also drawn to the Master's comment that there was little evidence other than that of Dr Jones to support the so-called dismal picture. The point made for the appellant was that Dr Jones' reports, and in particular his final report, which was made about three and a half months before the hearing before the Master, was the only evidence dealing directly with the question of the appellant's future taking into account all the matters that had affected her physically as a result of the accident. The reports of both Dr Cass and Dr Power, it was said, dealt only with one aspect of her situation and did not purport to deal with everything dealt with by Dr Jones. In my view there is a good deal to be said for this submission. I do not, however, accept it completely because when all the medical reports are examined it appears that Dr Jones' latest opinion was considerably more pessimistic than opinions he had expressed earlier and he had not in his report given any account of why it was that his view had changed to the extent that it did. When these matters are considered together with the appellant's own evidence, it seems to me that some discounting of Dr Jones' evidence was appropriate; however, my view is that the Master took this discounting process much too far, taking it so far indeed as to my mind to indicate the need for this Court to interfere with this aspect of his reasoning. The difficult question then arises how this Court should approach the quantification of an amount to be allowed for future economic loss. For the appellant, Mr Callaway QC, both in his written submissions and orally, put before the Court various calculations on a sensible basis by which the amount could be calculated. However, these calculations on his part involve giving a more complete acceptance to Dr Jones' views than seems to me to be warranted when all the evidence is looked at. I should say at this point that looking at all the medical evidence this Court is in as good a position as was the Master to make an assessment of it in that none of the doctors whose reports were in evidence gave oral evidence so that both the Master was and this Court is left in the awkward position of seeking to reconcile apparently conflicting medical evidence without the benefit of asking the doctors themselves questions which might well go to a reconciliation or an explanation of the differences between them. That this Court was in as good a position as the Master to consider this evidence was agreed by the respondent. WRUMEN v NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION (Meagher Returning to the question of quantification, the period in respect of which the quantification needs to be made is the entire period from trial to a date which the Court would assume as that at which the appellant would have been likely to retire, but for the accident. That whole period was divided for the purposes of argument into two conjectural parts. The first period which was spoken of was 10 years during which it was assumed on the basis of the evidence that the appellant would be likely to continue working in the way in which she had been working up to the trial. The second period was that following the first and was the subject of dispute between the parties so far as the likelihood of continued work was concerned. Any way of trying to quantify future economic loss covering the two periods is likely to be artificial. Any method chosen involves a number of assumptions and individual findings about which there can be little certainly. Mr Callaway's calculations are of assistance to the Court in that they provide a rough working limit by which the Court can be assisted. It seems to me that in the circumstances of this case the best way of proceeding is to try and estimate a lump sum to cover the whole period. The view that I have come to is that an appropriate response to the medical evidence in light of the appellant's own evidence is that a figure of $90,000 should be assessed as that for future economic loss from the date of trial. In regard to the other items which I earlier enumerated, my own view is that it is appropriate to adopt the figures assessed by the Master. The result is that in my opinion, the judgment below should be set aside except as to costs and in substitution for it a judgment increased by $50,000 should be made by this Court to take effect from the date on which the Master's judgment took effect. Also, the respondent should pay the appellant's costs of the appeal. Kirby P. I agree. Meagher I also agree. Kirby P. The Court makes the following orders: 1. Appeal allowed. 2. Set aside the judgment entered by Master Greenwood except as to costs. In lieu thereof enter judgment in favour of the appellant in the sum of $210,500 to take effect from the date of the Master's judgment, namely, 16 July 1993. Credit to be given to the respondent for any sum already paid. The defendant to pay the plaintiff's costs of the trial. The respondent to pay the appellant's costs of the appeal but to have, if so entitled, a certificate under the Suitors Fund Act 1951. Counsel for the appellant: CR CALLAWAY Solicitors for the appellant: BALE BOSHEV and ASSOCIATES Counsel for the respondent: G PETTY Solicitors for the respondent: Solicitor for NSW Insurance Ministerial Corporation