REECE v REECE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, HANDLEY and SHELLER JJA 28 February 1994, 28 February 1994 [1994] NSWCA 259 The trial Judge assessed 64 year old plaintiff as 33 1/3 per cent of a most extreme case - on appeal assessment held to be wholly erroneous by reference to position of much younger woman - assessment of 22 1/2 per cent substituted. Clarke JA I will ask Handley JA to give the leading judgment. Handley JA This is an appeal from a decision of Judge Nield which was given oncircuit at Bathurst on 4 June 1992. The claim brought by the plaintiff arises from a motor vehicle accident which occurred on 18 March 1990. Liability was not in issue and the plaintiff's damages fall to be assessed in accordance with the provisions of the Motor Accidents Act 1988 as amended. The accident in which the plaintiff was involved was a severe one because the car in which she was a passenger collided head on with an on coming vehicle and then later collided with another vehicle. She was then sixty four years old. The trial judge accepted the plaintiff as a witness of truth and accepted the medical evidence called on her behalf. His findings of primary fact have been accepted by the appellant and none of them is challenged. There was no claim for continuing economic loss. The question which was posed for his Honour arose under s79 of the Motor Accidents Act. subs! provides that damages for non economic loss should not be awarded to an injured person unless that person's ability to lead a normal life is significantly impaired by the injury suffered in the accident. There is no dispute on the appeal that the plaintiff's case is within subs1. subs2 provides that the damages to be awarded for non economic loss shall be a proportion determined according to the severity of the non economic loss of the maximum amount which may be awarded. That was fixed by the statute at $180,000 but provision was made for this amount to be indexed and at the date of trial that figure had increased to $198,000. The Court was informed that it is currently $212,000. It will be necessary to return in due course to his Honour's primary findings, the details of the plaintiffs injuries and disabilities, and the effects which these have had on her ability to live as she was doing prior to the accident. The trial judge said that the assessment for non economic loss: "".. is very much the subjective decision of the person who makes the decision. In this case it is my subjective decision. The plaintiff it seems to me is equal to one third of a most severe or a most extreme case. She has had to cope, if that be the right word, with her disabilities for the past two years and three months and she will have to cope with them for the rest of her life which according to the Australian Life Tables is another eighteen years, during which period her condition overall is likely to worsen. That it seems to me warrants my assessment of her with her disabilities as being one third of the most severe or a most extreme case." 2 UNREPORTED JUDGMENTS The appellant's submission and, indeed, its sole submission in this Court is that an assessment of the plaintiffs condition as being one third of "a most extreme case" is grossly disproportionate to the correct figure and represents a wholly erroneous assessment. As a result of the accident the plaintiff suffered multiple injuries to many parts of her body. She was struck in the face and mouth and suffered a chip to one of her front teeth which has been repaired but may ultimately need to be capped. She suffered an injury to her right wrist including a Colles fracture with a consequent nerve lesion to one or other of the nerves which serve that wrist. She also suffers as a result of that injury from carpal tunnel syndrome. She suffered an injury to her right thumb which included dislocation of one of the joints with laceration over one aspect of that joint. She also suffered an injury to her left thumb including a comminuted fracture to one of the phalanxes of that thumb including interference with one of the joints. There was an injury to her right knee which included damage to the medial meniscus and the medial ligament. She suffered an injury to her neck and she suffered extensive bruising to her left shoulder and chest. Immediately after the accident the plaintiff was admitted to Lithgow Hospital where she stayed for some four days until discharged. She was then referred to a specialist who caused her to be admitted to Orange Hospital where she spent a further three days. As a result of her injuries the plaintiff has lost much of the efficient use of her right wrist including the right thumb and two fingers of the right wrist. She has pain in the wrist, she has weakness in that wrist and is unable to efficiently do all the myriad things that a normal human being does who is right hand dominant in using the right wrist in the course of their daily life. In the plaintiffs case, of course, the problem is compounded by the injuries to her left thumb and the partial loss of the efficient use of the left wrist as a result of this injury. This only compounds the plaintiff's problems in carrying out any activities involving the use of her hands. The undisputed medical evidence is that those injuries are likely to worsen with time as degenerative and arthritic changes supervene and progress. The plaintiff also, as I have said, suffered an injury to her right knee which affects her both by reason of pain and weakness. This injury also is likely to deteriorate with time as arthritic and degenerative changes supervene and progress. Prior to the injury the plaintiff led an active personal life. She played golf and bowls and belonged to local clubs devoted to these sports. She was a partner in a transport business with her husband and did the book work for the partnership on a regular basis averaging, apparently, one day a month. She and her husband had an active interest in ballroom dancing which they were able to engage in from time to time and she was also a keen and active gardener. All these activities have been significantly affected by the combination of the injuries to her right hand, left hand and her right knee. There is no doubt, therefore, that the trial judge was correct in finding that the plaintiff had suffered a significant impairment which had diminished her capacity to live her life in the normal way. As Mr Hamman submitted, her injuries impacted on every aspect of her life: her working life, her sporting life, her social life, her personal life and in the hobbies that she pursued. It is clear, therefore, on any view that the plaintiff was entitled to a finding that her normal life had been significantly impaired and that she had suffered a significant degree of non economic loss. The question remains, however, whether URJ REECE v REECE (Clarke JA) 3 thirty three and one third per cent of a most extreme case represents a wholly disproportionate assessment of the degree of the plaintiff's loss such as to entitle and require this Court to interfere on established principles. The difficulty, in my opinion, with his Honour's assessment is to reconcile it with the assessment that might properly be made in the case of a much younger woman, say thirty, who before her injury had a similar range of interests and hobbies but had young children to help bring up and who, of course, faced a much longer period during which she would experience the pain, the disabilities and the progression of her condition. It seems to me that when one seeks to compare the position of this plaintiff with a woman, say, thirty to thirty five years younger than herself at the date of injury, it becomes evident that an assessment of this plaintiff as being one third of a most extreme case is a wholly erroneous assessment and disproportionate to a true assessment of the extent of her loss. It is not easy to arrive at a new figure. The Court, of course, is bound to re assess. No question of credibility arises and neither counsel have sought an order that the matter be remitted to the District Court for a fresh assessment by that Court. Doing the best I can and bearing in mind, as I have said, the position of a much younger woman with the same range of interests, and the same injuries, it seems to me that an appropriate assessment would be that the plaintiff's case represents 22.5 per cent of a most extreme case. I would, therefore, propose that the appeal should be allowed, that his Honour's judgment be set aside and that there be substituted judgment for the appropriate amount based on an assessment of 22.5% of the maximum. The Court has been made aware by Mr Conomos of a submission that the effect of the Motor Accidents Act is that once this Court proceeds to a re assessment, it must base itself upon the maximum indexed amount under s79 in force at the date of the appeal and should disregard the amount in force at the date of the trial. This is an important question. It appears that there has been a recent statement by two members of the Court on this matter but the Court does not know whether those remarks are part of the decision or a mere dictum. In the circumstances it would be convenient for this matter to be adjourned to a later time today or a later date this week for further argument on this important question. In addition it will be necessary for the parties to bring in short minutes, perhaps on alternative bases, to reflect this Court's decision to reduce the assessment from 33 and one third per cent to 22 and one half per cent. I would therefore propose that the Court would direct the parties to bring in short minutes at a date and time to be fixed and also that the further argument in this appeal be adjourned to the same time. Clarke JA I agree. Sheller JA I agree. Clarke JA Following the Court's decision announced earlier today, by consent and only as a consequence of that decision, the Court makes O.1 to 0.4 which are consent orders which I will initial and place with the papers. 1. Appeal allowed. 2. The Court makes O.1 to O.4 in Consent Orders. Counsel for the Appellant: J CONOMOS 4 UNREPORTED JUDGMENTS Instructed by: GE LAZAR Counsel for the Respondent: SM HAMMAN Instructed by: McINTOSH McPHILLAMY AND CO