SMITH v ROBINSON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY and MEAGHER JJA 14 March 1995, 23 March 1995 [1995] NSWCA 438 Motor vehicle accident — Whether general damages excessive — Whether judge erred in holding dental difficulties did not result from motor vehicle accident Appeal from District Court — Damages for motor vehicle accident — Whether general damages excessive — Whether judge erred in holding dental difficulties did not result from motor vehicle accident — Held: General damages high but not appealably excessive — Dental difficulties did not result from motor vehicle accident — If they did, on reassessment, larger verdict would not result. Mahoney JA On 15 August 1991 the plaintiff Pamela June Robinson was injured in a substantial motor vehicle accident. She was then some thirty-nine years of age. She sued the defendant Joan Ethel Smith for damages. Liability was admitted. On 29 August 1994 the issue of damages was tried by McLachlan DCJ. On 2 September 1994 his Honour gave judgment for the plaintiff for $58,690.30. The defendant appealed against his Honour's judgment and the plaintiff cross-appealed. His Honour's judgment was made up as follows: General damages $53,860.00 Past economic loss 351.63 Out-of-pocket expenses 2,998.22 Allowance for future psychiatric counselling 2,000.00 Allowance for future medication and expenditures 2,000.00 Interest 158.67 $61,368.52 LESS credit agreed between the parties 2.678.22 $58,690.30 The defendant has appealed only in respect of the award for general damages. The plaintiff has cross-appealed in respect of two matters: his Honour's conclusion that an injury to the plaintiffs jaw was not the result of the accident; and his conclusion that there should be no award for future economic loss. The plaintiffs claims and the nature of the primary injury suffered by her are not significantly in doubt and it is not necessary for me to detail them. They were described by the judge as being: "... the familiar whiplash allegation... a dislocated jaw, injury to neck and back and other injuries including psychological and/or psychiatric allegations". The plaintiff had been "shaken around by the 2 UNREPORTED JUDGMENTS impact" but "felt not too bad that day". The following morning she awoke "feeling sore all over her body especially around the neck and shoulders". She was treated by her local doctor. The evidence placed before his Honour consisted of oral evidence by the plaintiff and by a witness, Mr Chapman, who spoke as to her condition, and a large number of medical reports. None of the medical witnesses was called to give evidence. The contests in relation to the plaintiff's medical condition (I use the term "medical" to comprehend her dental condition) related in the main to four matters: the condition of her back; the condition of her neck; her psychiatric condition; and her dental condition. She had previously had substantial back problems. At the age of fourteen she had had a back condition resulting from her basketball activities and she had undergone a laminectomy at the age of twenty-two "from a fast water skiing incident". She had had other internal problems. In May 1988 a discectomy at LS/S1 had been performed. In June 1991, shortly before the accident, she had attended Lismore Hospital in relation to her low back problems and in July 1991 had been seen by Dr Fearnside, the surgeon who had previously operated upon her. As I have said, the accident occurred on 15 August 1991. It was necessary for the trial judge to form an opinion as to the effect which the accident had had upon her back condition and the extent to which that effect would continue to affect her in the future. Prior to the accident she had not had neck difficulties. As the result of the accident, she suffered a soft tissue neck injury which, two or three years after the accident, continued to cause pain and limitation of movement. It was necessary for the judge to decide the extent of the injury to the neck and the extent to which it would continue to affect her in the future. Prior to the accident she had had psychiatric problems. It is not necessary to recapitulate the details of her private life from which those problems arose. It is sufficient to record, as appears from the record taken at the Area Health Service in August 1992, that there were a number of aspects of her life other than the accident which prior to and following the accident might be seen to have caused psychiatric difficulties for her. She was examined, inter alia, by Dr John Shand, a psychiatrist. His opinion was that she was suffering from a post-accident anxiety condition. It may be that Dr Shand was not given by the plaintiff a full history of the psychiatric pressures which had been upon her and that to that extent his diagnosis may have been affected. It was necessary for the judge to determine, having seen her and having read the psychiatric evidence, what the nature and extent of her condition was and how it would affect her in the future. Prior to the accident and over a period of years, the plaintiff had had dental problems. She had early lost some of her teeth and a denture was referred to in evidence. Shortly after the accident a condition arose, or she became aware of a condition, affecting her jaw. She was treated for this by a physiotherapist and then by a dentist. An issue arose as to whether that condition was caused by the accident. His Honour concluded that it was not and accordingly awarded no damages for it. His Honour summarised his findings in relation to the relevant matters as follows: "Having considered the lay and documentary evidence I do not on the balance of probabilities relate the dental and/or jaw problem to the accident. As to the psychological and/or psychiatric position I accept that the plaintiff had a post URJ SMITH v ROBINSON (Mahoney JA) 3 traumatic anxiety reaction as outlined by Dr Shand. To the extent to which it still exists and is related to the accident I am confident that counselling will lessen the condition and probably cure it. I accept as outlined by Dr Fearnside in his report of 17 February 1994 that the plaintiff sustained a soft tissue neck injury, but Iam inclined to the view as expressed by Dr Allsop on 5 April 1994 that the depressive state contributes a psychogenic component to her complaints. I accept as did Dr Allsop that there was an aggravation in the lumbar region, but the real problem is to determine as to whether the aggravation still continues and as to the extent to which the accident contributes to the plaintiffs present lumbar condition. I see Dr Fearnside on 17 February 1994 referring to the aggravation and saying that whilst there should be slow improvement in both neck and lumber back the plaintiff may still be subject to pain from time to time. As to the lumbar back of course that is what the plaintiff admitted to pre-accident. There was another aggravation in June 1991 a couple of months before the accident when the plaintiff seems to have been using a mechanical device in the garden and had severe pain in the low back. She had an x-ray and said that the problem eased over a couple of weeks to minor twinges at the time of the accident. That seems to be confirmed by a reading of Dr Fearnside's report of 18 July 1991, exhibit F." On this basis his Honour concluded that, for the purposes of s79 of the Motor Accidents Act, the plaintiff's injuries were 28 per cent of a most severe case. He concluded that there would not be any future economic loss and that, having read Dr Fearnside's report of 7 February 1994, "the aggravation caused by the accident will subside and the plaintiff will be left with her pre-accident state". (His Honour was, I think, referring in that regard to her back condition). 1. GENERAL DAMAGES: Mr Leatherbarrow, for the defendant-appellant, submitted that his Honour's assessment of 28 per cent was appealably excessive. To determine this question, it is in principle necessary to decide the issues left uncertain in relation to her back, her neck and her psychiatric condition. Each of these is an issue of some difficulty. Her condition at the time of the trial and prospectively was referred to, inter alia, in the reports of Dr Fearnside and Dr Allsop. His Honour referred to these reports in his judgment. I shall not lengthen this judgment by detailing the contents of them. It is sufficient to conclude as I do that they indicate that, at the time of the trial and for at least some time in the future, the plaintiff would continue to suffer limitations, inconvenience and significant pain. In assessing this and other matters it is important, I think, to have in mind that the judge had the advantage of seeing the plaintiff in evidence. She was a witness the accuracy of whose evidence was in question. And she had had emotional problems which had led, for example, to Dr Shand not being provided by her with a fully detailed report and history. In saying this, I do not conclude that she was deliberately falsifying her evidence: that was not suggested. But the matter is I think to be approached upon the basis that his Honour's conclusions may have been affected by the views he formed as to her credibility and the accuracy of her evidence. Taking these matters into account, I would conclude from his Honour's findings and from the evidence referred to by him that he saw the plaintiff as apt to suffer in the future not insignificant pain and discomfort. The evidence which it was open to him to accept could have led to that conclusion. I would not find the assessment made by the judgment to be wrong in that regard. However, as indicated in evidence, my own reaction to the proportion adopted by the judge, viz, 28 per cent is that it is high: it is, I think, at or towards the highest end of the range which was open to his Honour to select, even upon the 4 UNREPORTED JUDGMENTS basis to which I have referred. But, bearing in mind what it was open to his Honour to find would be her future condition as caused by the accident, I would not conclude that it was beyond what, in the exercise of a sound discretion, the judge could find. 2. DENTAL INJURIES: The plaintiff said that "as time went on" after the accident she noted that she had "the shooting pains that I was getting in my head and severe pain behind my ear and up over my head...". The physiotherapist who was treating the plaintiff noticed that her jaw "had been clicking"; the plaintiff herself had not realized that it was doing so. She said that the physiotherapist "put some pressure on there and it immediately eased the pain in my head". She saw a Dr Farrell, a dentist at Southport in Queensland and he recommended that she wear what was described as a "TMJ unit". He "built wedges up on the back of my teeth and continued to adjust those over a period" which she estimated as five months. With a complete upper denture her headaches were, she said, eased considerably although she still had the "clicking" from time to time thereafter. The physiotherapist, who first treated her on 23 December 1991, "decided that the pains in her shoulder and her back required more thorough work on the tempero mandibular joints" and sent her to Dr Farrell. Dr Farrell recorded that the plaintiff was "complaining of head, neck and shoulder pain. These symptoms were accentuated following a motor vehicle accident". He noted "tenderness in the muscles of the craniomandibular complex. Opening and closing clicks in the temporomandibular joints were noted". The treatment involved "acrylic buildups on the existing full denture, then finalising the correct bite with a new full upper denture". In his report he said: "As with most of these cases, the TMJ joints are associated muscle and ligaments are traumatised requireing a new bite to be established (sic)." He thought that about 20 per cent of residual pain and discomfort "often remains". On 18 November 1993, the plaintiff was examined by Dr Bruce B Edelman, described as an oral and maxillo-facial surgeon. The doctor examined the plaintiff, recorded a detailed history, noted her complaints and had made x-rays of her jaw and temporo mandibular joints. He recorded that the x-rays showed, inter alia, "no focal bony defect... in the TM joints or in the maxillary sinuses". Dr Edelman stated his conclusions at some length. He concluded that, in her "amazingly accident rife life", there were two accidents, each of which "could have traumatised the temporo mandibular joints", namely, one when at the age of twelve she "smashed all her upper teeth... running around a swimming pool" and the second a water skiing accident in her early twenties after which all her upper teeth were removed. He said: "... it would be absolutely impossible for anyone to state that the motor vehicle accident caused the present temporo mandibular joint problems. The patient's temporo mandibular joints would have been most damaged, in my opinion, by the wearing of a full upper denture for half of her life. In my opinion, it is amazing that this patient can still open her mother 50 mm and can eat all types of food, even the hardest. It is my opinion, that the motor vehicle accident has brought to the fore an underlying condition. I believe this condition would have eventually occurred with or without this final trauma. I do not believe that any of her jaw complaints could alter her enjoyment of life or prevent her from being employed in any form of gainful employment." The plaintiffs submission in this regard was to the effect that, although the trial judge could have discounted the plaintiff's own evidence, what she said was, to a significant extent, corroborated by the physiotherapist and Dr Farrell and URJ SMITH v ROBINSON (Mahoney JA) 5 accordingly should be accepted. The argument suggested that the conjunction in time between the accident and her complaints suggested that the accident had either caused or aggravated the symptoms. The argument sought confirmation of this in the statement by Dr Edelman that the accident "brought to the fore an underlying condition". In my opinion, it was proper for the judge to adopt the conclusions of Dr Edelman. From his report, he purported to be a person of particular skill. He had before him, as the history suggested, the substantial matters relating to what she said had happened to her and, in particular, the sequence of events. He appears to have disagreed with what the physiotherapist and Dr Farrell apparently believed, namely, that the plaintiffs jaw was "dislocated". He saw the cause of her condition and the need to build up her dentures to be what had previously happened to her. Were I deciding the matter, I would adopt Dr Edelman's conclusions in this regard. It was submitted that what Dr Edelman said could alternatively support the view that the present accident had accentuated or made symptomatic a condition which previously had not caused trouble. I do not think that this is what the doctor meant by "has brought to the fore an underlying condition'. The plaintiff had apparently been suffering from "clicking" of her jaw of which she was not conscious; it was brought to her attention when the physiotherapist referred to it. It is not clear how long this had been going on. It is, as Dr Edelman indicated, clear that her bite was in need of correction and this may have been the reason, or a reason, why her headaches following the accident were as they were. Dr Edelman's view was emphatic that it would "absolutely impossible" to state that the accident caused her then present problems and it would be inconsistent with this for him to opine that the accident made symptomatic a condition which had not previously been so. I would understand what he said "... has brought to the fore an underlying condition" as indicating that she had been made conscious of the clicking and the condition which gave rise to it because, as I have indicated, the physiotherapist noticed it. For these reasons, I would not differ from the conclusion of the trial judge that these problems were not caused by the relevant accident. 3. FUTURE ECONOMIC LOSS: The judge was not satisfied that she would suffer future economic loss. Mr Capelin QC, for the plaintiff, submitted that it would be inferred that, given her accepted condition, she would suffer economic loss in the future. However, this suggestion was not put to and passed upon by any of the medical witnesses. It was not the subject of significant examination at the trial. Having regard to the plaintiff's condition and in the circumstances, I would not conclude that there would probably be future economic loss. Ihave dealt with the issues raised by the parties in the appeal. It follows from my conclusions that the appeal and the cross-appeal should be dismissed. However, in view of the observations made during argument, it is proper to add one further observation. Minds may differ as to whether the accident caused or contributed to the plaintiffs dental difficulties. It is my opinion that it did not. But, if I be wrong in this, the conclusion that, for example, the accident caused the dental difficulties would not in my opinion lead to the upholding of the appeal. If the dental difficulties were caused by the accident, the direct effect of that conclusion would be that it would be necessary to re-assess, as they are conventionally described, the general damages. The dental difficulties go, or go essentially, to that head of damage. It has been the settled practice of this Court, 6 UNREPORTED JUDGMENTS following the views of the High Court that, if one substantial part of the damages requires re-assessment, the Court should itself re-assess the whole of the damages. (I put aside cases where the impugned head of damages is severable and other special cases). As the result of the Motor Accidents Act, the way in which the Court is to approach the assessment of damages has been changed. But, at least in a case such as the present, I do not think that that alters the approach. A change in respect of the dental difficulties will affect essentially the general damages: it will also affect future expenditure but that is not a matter of great moment. Accordingly, if I be wrong in relation to what caused the dental difficulties, it would be necessary to re-assess the verdict generally. Upon such a re-assessment, it would be necessary, in addition to taking into account future dental expenditure, to determine the effect of the dental difficulties upon general damages. As I have indicated, it would be wrong merely to add an account of this to the judge's assessment of 28 per cent. On a re-assessment it is necessary for this Court to make its own assessment. As I have indicated, I believe the judge's assessment at 28 per cent was at the limit of what was appropriate. Were I re-assessing, I would - the dental difficulties apart - assess the damages significantly lower. Accordingly, taking into account the dental difficulties, I would not assess the damages, as a proportion, higher than 28 per cent. In the result, the appropriate order to be made is that the appeal and cross-appeal be dismissed with costs. Meagher JA I agree with Mahoney JA. Appeal and cross-appeal dismissed with costs. COUNSEL: Appellant: RV LEATHERBARROW Respondent: PR CAPELIN QC/B ROSS SOLICITORS: Appellant: FERGUSON HOLZ Respondent: WATSONS