BRAITHWAITE (by her tutor Peter Braithwaite) vy FLYNN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY and PRIESTLEY JJA 6 December 1995, 6 December 1995 [1995] NSWCA 57 Motor vehicle accident — Whether s79 of the Motor Accidents Act satisfied — Held not satisfied Appeal from District Court — Motor vehicle accident — Whether s79 of the Motor Accidents Act satisfied — Held: Not satisfied — Appeal dismissed with costs. Mahoney JA This is an appeal against a judgment of his Honour Judge McDevitt given on 30 April 1993 in which he held that the plaintiff had not established that she had brought herself, if one may put the matter shortly, within s79 of the Motor Accidents Act and that accordingly no award for non-economic loss should be made. He gave a verdict for the defendant. There was no claim in the proceeding for economic loss. There is not any significant contest as to the basic facts. The plaintiff, who was an infant of about ten years, was on 24 January 1990 walking or pushing her bicycle across a pedestrian crossing. She was struck by the defendant's motor vehicle. The result of the incident was that she had some minor abrasions and the like to her legs, her elbow and so on. They have significantly cleared without sequelae and nothing turns upon them. She was given no treatment in hospital and, as the judge said, in four days she resumed her ordinary routine. (I am not purporting to detail all of the facts or the evidence. They are referred to in the judge's judgment and have been dealt with in proper detail by Mr Cummins QC in his address on behalf of the appellant. I shall go only to the substantial matters that have been relied upon in the appeal). It has been submitted that, in finding as he did that s79 was not satisfied, that is that the plaintiffs ability to lead a normal life was not significantly impaired by the injuries, his Honour was wrong in this respect. It was submitted that the judge failed to take into account or take into account properly the fact of her enuresis, that is bed-wetting, as a result of the accident, an anxiety neurosis condition resulting from the accident relating to her riding of a bike and nightmares which she suffered but which have now gone away. Mr Cummins QC, at the Court's request, enumerated these three things as the matters upon which relevance was placed in order to establish that s79 should be held to be satisfied. In his judgment the trial judge dealt with the issue of bed-wetting. He said that the bed-wetting had commenced at the age of eight and he refers briefly to the incidents of it. It had, prior to the accident, been reduced to only about once or twice a week but, as he said, immediately after the accident the frequency of it had returned. However, the frequency of it had decreased since, over a period of time, and evidence was given by the mother and by way of history by Dr Milton, psychiatrist, and Professor Brent Waters, a consultant psychiatrist, in relation to those matters. 2 UNREPORTED JUDGMENTS The learned judge came to the conclusion that this was not a matter of great moment. His Honour said that at the time of the first hearing, 12 February 1993, its frequency had decreased to two or three times a week and in the immediate week of the trial she had wet the bed only once. The plaintiff also said when the event occurs she does not know about it until she wakes in the morning. Professor Brent Waters was of the opinion (I put his view substantially, I do not repeat the detail of it) that the condition would disappear over a period of time. He was inclined to link it to her family history as well as to the effects produced by the accident, but (stating the matter very broadly) his view was, I think, that her condition would improve and would eventually disappear within a relatively short time. It was submitted by Mr Cummins QC that his Honour had, in his statement of the position, erred in his summary of what had been said by the various witnesses. It is no reflection upon Mr Cummins' advocacy if I do not intend to grapple in detail with the question whether there had been an error in his Honour's statement of the evidence. I have myself, on a rehearing as this is, examined the evidence given both by way of report and orally by the relevant witnesses and come to my own assessment of them. My own assessment of them would not differ substantially from the assessment which, as I infer, the judge came to. I think that there has been some bed-wetting but it has decreased. I think a proper conclusion is that in due course it will go away; at least the causal effects of the accident upon it will disappear. I do not mean by this to indicate that this is not a matter which can and will cause some distress to a young girl: it will. But I think the matter has to be put in perspective and substantially I do not differ from the assessment made in this regard by the judge. The question of the nightmares is, I think, something which may be put aside. I take into account that nightmares occurred. But they have ceased and I do not think that they weigh heavily in a s79 assessment of the present kind. Some point was made at the trial of, as it was described, the anxiety condition said to have been developed by the plaintiff in relation to the riding of the bike. Professor Brent Waters I think put the matter in proper perspective in the course of his evidence. I do not think that the judge substantially erred in the assessment of his evidence but whether or not he did reading his evidence again I would myself not feel that the matter was a matter of great moment. As the Professor said, there are some cases in which people develop a condition of anxiety or a condition of neurosis and have a genuine fear of roads or vehicles which lasts for a long time. He did not think that this was the situation in relation to the plaintiff. He referred to the fact that children, such as she was, grow out of the use of bikes. He did not think that she had developed an apprehension in relation to motor vehicles. I think that his view was that while she had some form of anxiety (if I may use that term in a somewhat inaccurate form) or aversion in relation to bikes, it was a minor matter which did not significantly affect her enjoyment of life. In deference to Mr Cummins' argument, I have referred in some detail to these matters but in the end I am of the opinion that the effects of the accident have been, for the purposes of s79, relatively minor. One may be thankful for this of course. In the end, the role of this Court, as was the role of the judge, is to determine whether in its judgment s79 has been satisfied. URJ BRAITHWAITE (by her tutor Peter Braithwaite) v FLYNN (Priestley JA) 3 The plaintiff suffered some problems from the accident, that is clear. I do not, by what I say, minimise those problems. They have, perhaps, caused anxiety to her or to those who are caring for her. If they have, I sympathise with them. But this Court must decide whether what has happened warrants the award of damages to her. The legislature in its wisdom has determined that no damages of the kind here in question are to be awarded unless there has been within s79 a significant interference with the plaintiff's ability to lead a normal life within the terms of the section. That is a limitation which the Court must enforce. Considering all the evidence, I am not satisfied that the section has been satisfied. I think that the judge came to the correct conclusion. It is a conclusion which I would adopt. In the circumstances I would propose that the appeal be dismissed with costs. Priestley JA I agree. Mahoney JA: The order of the Court therefore is that the appeal is dismissed with costs. COUNSEL: Appellant: JOD CUMMINS QC/JW CONOMOS Respondent: DF ROFE QC SOLICITORS: Appellant: BAKERS, Dubbo Respondent: MALCOLM JOHNS AND CO