NSW INSURANCE MINISTERIAL CORPORATION (formerly GIO of NSW) v HASKARD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, HANDLEY and SHELLER JJA 5 July 1994, 5 July 1994 [1994] NSWCA 242 DAMAGES: reasonableness of general damages; exercise of discretionary judgment in regard to general damages The respondent was involved as a passenger in a rear-end collision. The appellant contested the award made by the trial judge with respect to past economic loss, future economic loss and general damages. The awards made under the first and second grounds of appeal were found to be within the acceptable range. However, an award of $45,000 for general damages was found to be outside the range of an appropriate exercise of judicial discretion. The Court re-assessed general damages in a total amount of $30,000. Sheller JA This is an appeal by the Government Insurance Office, now the New South Wales Insurance Ministerial Corporation, against a judgment of Judge Lloyd-Jones QC on 20 November 1990. On 17 May 1986 the vehicle in which the respondent was a passenger was struck in a rear-end collision. At the time of the accident the respondent was nearly 26 years old. She was seen at Liverpool Hospital on the day of the accident for neck x-rays and the provision of a cervical collar. She went to her family doctor six days after the accident and commenced physiotherapy on 26 May 1986. Thereafter she had a few visits to her family doctor and to the physiotherapist. In November 1986 the respondent and her husband moved to Queensland where she worked in a fruit shop operated by her parents-in-law doing, amongst other things, stacking and packing and quite heavy work. She continued with this work until April 1990 when she stopped doing it because she said it had become too much for her. The trial judge summarised her condition at the date of trial in his judgment. He described her present condition at that time as static and referred to problems she had had sleeping after the accident with severe headaches, despite having taken anti inflammatory tablets. She wore a collar for about a month but said that that tended to make the neck worse. She had problems turning her head. Physiotherapy had been of some help for a few days but the problems came back. She described tingling in the fingers, primarily in the left hand, but that tingling sensation had resolved by the time of the trial. The neck and right shoulder condition had gradually settled from its original degree of intensity. She said that when she moved to Queensland the headaches were coming two or three times a week, would last three to four hours and were quite severe. She took medication when she had the headaches. There was a throbbing in the base of the skull and a stiff and tight feeling in the neck and on occasion she felt nauseous. That degree of intensity would bring on nausea which would occur about once every three or four weeks. His Honour observed that was back in 1986 on what she described as a bad day. 2 UNREPORTED JUDGMENTS Overall she coped with her job in Queensland but her problems became worse with use. There was stiffness and a tight feeling to the neck which continued with limitation of movement. After she stopped working in April 1990 she still had problems sleeping two or three nights a week due to the stiffness and pain in the neck and throbbing in the head. She had apparently reduced her hours of work some time in January 1990, due to her problems. His Honour observed that there was a pregnancy factor that had to be taken into account with regard to the economic loss aspect. He observed that if she stopped working she began to improve somewhat, due to less heavy activity and physiotherapy helped for a short time, although it gave only partial relief. The headaches and the stiff neck persisted. His Honour said they tended to come at the same time. His Honour described them as moderate and the tendency to nausea as not having been apparent for some time. She used ice packs on her neck because she was unable to take pain killers due to pregnancy. She had played netball earlier in her life and resumed it socially when she moved to Queensland but gave it away because she was unable to cope due to her problems. She continued, so his Honour found, to have difficulties around the house. Her temperament had changed a little in that she was inclined to be crankier. His Honour regarded the assessment of past economic loss as difficult and he set out a number of matters in terms of calculation in his judgment: "Past economic loss is a difficult situation, the evidence indicates that in 1987 she worked thirty-three weeks and her nett wage was $154. Then in 1988 she worked a full year with average nett weekly wages of $189. And in 1990, she worked forty weeks, at an average of $108." He said that she had applied for jobs at K-Mart. She felt she would be able to do a check-out job although she did make some mention of problems with turning her body in the course of that activity. She had throbbing headaches for some years before the accident up till about 1982 but his Honour accepted that they were of a different kind. His Honour summarised some of the medical reports, that is to say those of doctors called on behalf of the respondent: "T have taken account of all the medical reports. Doctor Glasson exhibit B refers to possible earlier degenerative spondylosis, than otherwise may be the case. That is a 1987 report. There really is nothing out of the ordinary in her ligamentus strain type injury, although it is of a severe kind. I am satisfied, it has now lasted four and a half years. There certainly will be no spontaneous recovery. Doctor Milders's report of 27 February 1990 says the outlook is uncertain. He is not over optimistic for her. Doctor Eagleton's report of 12 March 1990 says that the problems having persisted for some time will persist indefinitely. Doctor Sutherland's report of July 1990, says that, that is exhibit H, 'My prognosis is therefore based upon probability and my own experience'." His Honour said that he anticipated that the respondent would continue to have neck problems and headaches which would respond marginally to intermittent physiotherapy and that she had a significantly increased chance of developing premature degenerative changes to her cervical spine as a direct result of continuing localised inflammation, with consequential greater severity than would be expected in a normal aging population. Further recovery was unlikely in the future. WRBW INSURANCE MINISTERIAL CORPORATION (formerly GIO of NSW) v HASKARB (Handley JA) His Honour said that on the totality of the evidence he would allow $3,500 for past economic loss. This assessment is challenged by the appellant. Reference is made to the fact that prior to the accident she had not been in employment for some time and, indeed, her employment history was that she had been employed casually for a period of about one year. However, it seems clear from the evidence that his Honour accepted that her earning capacity was detrimentally affected up to the time of the trial and, for my part, I do not regard his Honour's assessment of $3,500 as being outside the range. I would reject this ground of appeal. As a cushion for the future in terms of economic loss his Honour fixed an amount of $4,000. Again this is challenged by the appellant and again taking account of the work history and the evidence that the respondent gave about it, Ido not regard this amount as being unduly generous and I would reject also this ground of appeal. When his Honour came to consider past general damages he said that the respondent had, as it were, "soldiered on", that she had suffered substantially over the four and a half year period up to the time of trial. He allowed an amount of $25,000 for past general damages and a further amount of $20,000 for future general damages. I have given consideration to the account that his Honour has given of the pain and headaches that the respondent described. There is, undoubtedly, evidence of some ongoing problem in this regard and his Honour clearly regarded that as a probability. However, bearing all that in mind, it seems to me that the total amount of $45,000 for general damages is outside the range of an appropriate exercise by his Honour of his discretionary judgment. Taking account of the nature of the injury, the intermittent treatment that it received with a substantial gap between the date of the accident and the treatment in New South Wales and the treatment that was undergone in Queensland, I think that, the amount awarded being outside the range, this Court should re-assess general damages in a total amount of $30,000. His Honour took the view that this should be broken up in a way that allowed a greater amount for past general damages than future. The way of breaking up the amount is not challenged, as I understand it, in the appeal and I would propose a not dissimilar break up. In my view, the amount allowed for past general damages should be $18,000 and for future general damages should be $12,000. Accordingly, I would propose that the appeal be allowed, that the verdict and judgment be set aside and in lieu thereof there should be a verdict and judgment for the plaintiff/respondent in the amount of $38,150. The judgment is to take effect from 20 November 1990. The respondent should have the costs of the trial. The appellant should have costs of the appeal. There should, if the respondent is qualified, be a certificate under the Suitors Fund Act 1951. Clarke JA I agree. Handley JA I also agree. Clarke JA: The order of the Court will be as Sheller JA has announced. Appeal allowed with costs Counsel for the appellant: D J Russell Solicitors for the appellant: Peter Jessep, Hurstville 4 UNREPORTED JUDGMENTS Counsel for the respondent: C P Heazlewood Solicitors for the respondent: Gorman Dunbier Mackenzie