URBAN TRANSPORT AUTHORITY OF NEW SOUTH WALES v WILLIAMS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, HANDLEY and SHELLER JJA 8 July 1994, 8 July 1994 [1994] NSWCA 330 QUANTIFICATION OF DAMAGES Clarke JA This is an appeal from a judgment of Associate Judge I Johnson QC given on 3 August 1992. His Honour awarded the respondent damages in the sum of $219,042.84 for an injury which she sustained when a passenger in a bus on 19 September 1985. The injuries were primarily soft tissue injuries to her cervical spine and both knees. His Honour accepted that there were some degenerative changes in the cervical spine but held that the accident had aggravated those changes and it was the aggravation which caused the respondent problems with her neck and shoulder. His Honour says little more about her condition. He awarded the respondent general damages in an amount of $40,000, of which amount $25,000 he allocated to the knee injury and $15,000 in respect of the injuries to the respondent's neck. He obviously considered that both conditions had virtually settled, for he allowed general damages for the future in 10 per cent of the sum of $40,000. He also allowed the appellant economic loss in respect of the period between the date of accident and the date of trial. He accepted the claim for impaired earning capacity in the future which he calculated on the basis that the respondent remained totally unfit for any form of work and would remain so until the age of 65. The appellant has challenged both the economic loss claim and the award for general damages. The respondent was born on 26 June 1936 and had left school at the age of 13. She had worked and, indeed, had a very good work record. She married in 1959 and had five children and she was, at the time of the accident and trial, married, although her husband had had a heart condition and had retired. Consequent upon receiving some advice from a physiotherapist, Miss Jenny Butler, the appellant retired from her employment as a tea lady at OTC on 13 November 1987. She had worked at that organisation for a number of years and there was some criticism of the advice she was given in the medical evidence which was proffered at the trial. Following her resignation from employment, she was required to look after a grandchild for some period but notwithstanding that she did make some attempts to get another job and was unsuccessful. This is not surprising, because she was seeking employment in difficult times and she was aged over 50 and employers were not seen to be attracted to her, primarily because of her age. It may be that the fact that she had left her job because of incapacity had something to do with her not obtaining employment. At the time she resigned she was having some physical problems at work mainly with her neck, but some time after she ceased 2 UNREPORTED JUDGMENTS employment, her neck problems settled down to a large degree and although there was some improvement in her knee condition, I think it is true to say that at the date of trial she was still suffering from some problems in the knee. She said that while she was at work it was her neck that gave her the most problems, but within two months of ceasing work she had a measurable improvement at least in the neck. She continued, however, to get a lot of pain in the knee if she sat for any length of time. If she drove she got pins and needles in her arm. She said that the knee often gives away if she sits for any length of time, but she had been doing a lot of walking because she had put on weight. Sometimes her knee swelled up. Dr Roarty provided the main medical evidence in support of her claim. Dr Roarty is a specialist orthopaedic surgeon and his evidence was given in the form of written reports. In April 1987 he observed that she suffered from degenerative changes in the cervical spine which could have been aggravated in the accident. She also had soft tissue injuries to both knees. The doctor thought that the present aggravation would slowly subside over the next year or so and she should not be left with any permanent disability. He thought she would have pain on lifting a heavy tea pot all day. In May 1990 he said that it was inevitable that she would have developed some pain through the natural progress of the disease and since the pain had improved after she ceased her work, it was reasonable to say that the aggravation had now ceased. I should emphasise that the disease of which the doctor was speaking was a degenerative condition in her neck. The doctor then turned his attention to her left knee saying that she had had soft tissue injuries and some evidence of retro-patella chondritis which he thought was the end result of the injury of September 1985. Pausing there, it is clear that the doctor had formed the opinion that the aggravation to her neck condition was no longer operative, but that it was reasonable that she still had problems with her knees. In a later report dated 18 October 1990, the doctor said, "It is reasonable to assume that the conditions of her cervical spine and her left knee which were both degenerative in nature could have been aggravated in the accident in the bus". The doctor thought that the effect of the accident had since passed. There is no medical evidence which contradicts the doctor's opinion. On one view Dr Kendall, who also saw the respondent at her solicitor's request, gave a somewhat different picture, but his evidence could not be said to provide material which negated the effect of Dr Roarty's evidence. In one respect, however, I have problems with what Dr Roarty said and that is in respect of the respondent's knees. He had said that she had soft tissue injuries and some evidence of retro-patella chondritis which is, as other evidence in the case demonstrates, a condition that can be caused by trauma. There is nothing in Dr Roarty's report to suggest she had a degenerative condition in her knees. I am left with the impression that Dr Roarty overlooked that when he came to include the knees with her neck in giving his final opinion. For my PtI think the trial judge was bound to accept that the aggravation of the neck condition had ceased, but was entitled to accept that there was some continuing - albeit low grade - problem with the respondent's knees, particularly her left knee. WARBAN TRANSPORT AUTHORITY OF NEW SOUTH WALES v WILLIAMS (Sheller JAB Having regard to those conclusions, I am not persuaded that the award of $40,000 for general damages is beyond the range. I recognise, I must say, that it is a very high award for the condition proved in evidence, but I do not think it can be said that it crosses the boundary into the area of what is impermissible When one turns to the claim for economic loss, one can, I am afraid, find no support for a continuing physical impairment which could support a claim for an impaired earning capacity in the future. All that one has is evidence that there is a low grade knee problem which, from time to time, troubles the respondent. Bearing in mind that the evidence was that it was her neck that caused the problems at her work, and the evidence concerning the likely effects of the degenerative condition, I do not think it could be properly held that she has made out a case for economic loss in the future. In that respect, in my opinion, the learned trial judge erred. T also think that he was in error in awarding economic loss at the rate claimed until the date of trial. In the light of the evidence of Dr Roarty, I am of the opinion that economic loss beyond October 1990 is not supportable. For these reasons I would propose that both the allowance for the future and portion of the allowance for the past be rejected. In place of the allowance of his Honour in respect of the past, I would be disposed to award, together with interest, a total of $54,257.00. His Honour also allowed $3,000 in respect of physiotherapy in the future. This award is not supported by the evidence and I am afraid cannot stand. Accordingly, the damages which should be awarded to the respondent are the out of pocket expenses of $2,467.40, general damages of $40,000 and past economic loss and interest amounting to $54,257.00. In addition there should be an allowance of interest on the general damages in the amount awarded by his Honour of $5,040. The total of those figures amounts to $101,764.40. I would propose that the following orders be made: (1) Appeal be allowed; (2) The judgment of Associate Judge I Johnson QC is set aside except as to costs. In lieu thereof, direct judgment for the respondent in the sum of $101,764.40 to date from 3 August 1992; and (3) The respondent is to pay the appellant's costs of the appeal and to have a certificate under the Suitor's Fund Act. I should add, before final orders are made, that Mr Johnson wishes to be heard on one matter. (Mr Johnson further addressed his Honour in respect of a cushion sum for the future). One matter which was not the subject of detailed argument during the appeal was whether, assuming the Court reached the conclusion that it has reached, there should not be some cushion awarded to the respondent to protect her, in an economic sense, in the future. Mr Johnson has now applied, prior to the making of any order, for a cushion. Mr Hall QC for the appellant opposes the awarding of such a sum. I am of the opinion that it is appropriate to award a small cushion of $10,000 and this should be added to the figures I have already read out. Handley JA I agree. Sheller JA I agree. Clarke JA: The final sum will be $111,764.40. (1) Appeal allowed; 4 UNREPORTED JUDGMENTS (2) The judgment of Associate Judge I Johnson QC is set aside except as to costs. In lieu thereof, direct judgment for the respondent in the sum of $101,764.40 to date from 3 August 1992; and (3) The respondent is to pay the appellant's costs of the appeal and to have 5 a certificate under the Suitor's Fund Act. The final sum will be $111,764.40 Counsel for the Appellant: G B Hall QC 10 Solicitors for the Appellant: Mark Kennedy & Co Counsel for the Respondent: G H Johnson Solicitors for the Respondent: McGirr James Hall & Associates