SANTIAGO v BARCLAY BROS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, PRIESTLEY JJA and GILES AJA 23 March 1995, 4 July 1995 [1995] NSWCA 416 PERSONAL INJURIES — appeal on adequacy of damages — appellant severely injured on a construction site — suffered paraplegia and total loss of earning capacity — trial judge awarded damages under various heads — appellant challenged adequacy of following components: future economic loss; cost of swimming pool; future services; future medical and other treatment; general damages. Held: trial judge was justified, on the basis of the available evidence, in making the awards that he did, except in two respects — (1) the trial judge was in error in assessing the need for future services on the basis of two hours services per day — past care assessed on the basis of three hours services per day and little prospect of a lesser need for services in future; (2) on the basis of the medical evidence, the trial judge should have allowed for annual endoscopy testing. Mahoney JA I agree with the judgment of Giles AJA. Because of the nature of the plaintiffs claim and the importance of the matter to him, I shall add some short observations of my own. The award of general damages $240,000 is high: it is, in my experience, one of the highest awards for this aspect of loss. As the arguments in the present appeal have suggested, no sum of money can replace the loss for which it is given. The award is - to adapt the language which has been used in some cases of authority - a solatium, to provide, by what it is and what it can buy, something to offset the tragic results of what has happened to the plaintiff. The amount to be given for this purpose has conventionally been assessed having regard to the general experience of verdicts in analogous cases; more accurately, perhaps, it is assessed according to the reaction of a judge or a court in the light of the experience of the judge or the court and of others as to the general level of compensation awarded for physical injuries. The court has on many occasions stressed the discretionary nature of the process by which general damages are assessed. That has not been in issue in the present appeal. After careful consideration of the submissions made, I am satisfied that no error has been shown such as would warrant the setting aside of the assessment made by the learned trial judge. The court has, during argument and since, been conscious of the fact that this is an appeal by way of rehearing. It has been conscious of the fact that, subject to such restraints as are imposed by, for example, Abalos v Australian Postal Commission (1990) 171 CLR 167 and Voulis v Kozary 180 CLR 177, the court must itself assess the evidence given at the trial. It is upon this basis that I adopt as my own the conclusions referred to by Giles AJA. In the end I see no reason to differ from the conclusions of the trial judge other than in respect of the matters to which Giles AJA has referred. I agree with the orders proposed. Priestley JA I agree with Giles AJA. 2 UNREPORTED JUDGMENTS Giles AJA The appellant was severely injured on a construction site in November 1986. He suffered paraplegia, and it was found that his earning capacity was completely destroyed. After a hearing in February 1993, in March 1993 he was awarded damages of $1,782,330. In this appeal he challenged the adequacy of five of the components of that award. A challenge to past economic loss was abandoned and the challenge to future economic loss was abandoned in part. FUTURE ECONOMIC LOSS The trial judge allowed $338,400, being $423,000 representing award wages and overtime assuming continuous employment to age sixty-five discounted by 20 per cent for vicissitudes. $47,000 of the $423,000 represented overtime, and in that part of the challenge which was maintained the appellant submitted that there had been an impermissible double discounting in relation to that sum. The submission misconceived what the trial judge had done. It was necessary to find a likely level of overtime assuming full employment. The appellant contended for twelve hours overtime each week, which would mathematically lead to a figure of $94,000 rather than $47,000. But there was other evidence on the basis of which, acknowledging that there were "many imponderables", the trial judge took six hours overtime per week as the appropriate level, and hence the figure of $47,000. What was done did not involve a discounting for vicissitudes, but a level of overtime earnings assuming full employment, and it was not correct to say that the trial judge had discounted the overtime component by 50 per cent and then discounted again by the 20 per cent for vicissitudes. This challenge fails. COST OF SWIMMING POOL The trial judge made no allowance for a swimming pool, for two reasons: that he was not satisfied that there were significant health benefits to the appellant in having a pool, and that he was not satisfied that the appellant would spend the money on getting a pool. The appellant submitted that there should have been an allowance for the pool. The effective ground for the first reason was that, of the three doctors who referred to provision of a pool, Associate Professor Jones and Dr Yeo had not advocated a health need for a pool but expressly or impliedly had said that there was no such need, and their opinions were preferred to that of Dr Kendall. If the matter were left there there would be no ground for this Court to interfere, and the appellant sought to vitiate the reason in a number of ways. It was said that Associate Professor Jones' reference to swimming being "a useful recreational activity" necessarily translated into a therapeutic value because the appellant's condition called for exercise, but that is not a translation I can accept - in my view, if Associate Professor Jones had seen a therapeutic value he would have said so. It was said that the trial judge had misconstrued Dr Yeo's statement that the appellant did not require hydrotherapy as an opinion against a swimming pool, but read in conjunction with Dr Yeo's recommendation of a physical exercise program (or even alone) I would understand it the same way. It was said that the trial judge did not properly take into account Dr Kendall's evidence of the therapeutic benefits of a pool or the fact that Dr Kendall's opinion was more recent than that of Associate Professor Jones and given orally rather than through a report, but all the medical evidence came in the appellant's case and, particularly when Associate Professor Jones' eminence in the field was acknowledged, I do not think that any error can be seen in the trial judge's URJ SANTIAGO v BARCLAY BROS (Giles AJA) 3 consideration. Lesser matters referred to do not call for mention, and none of the matters urged on the appellant's behalf to my mind warrant a different view from that taken by the trial judge. Going to the second reason, there was obscurity in the evidence concerning the appellant's ability to swim, but it would be very difficult to overturn what I consider to be a finding of fact resting in part on the trial judge's assessment of the appellant. No money should be awarded for a future expenditure if it be correct that the expenditure will not be incurred. It is unnecessary to deal further with the second reason. This challenge fails. FUTURE SERVICES The trial judge allowed an amount for past care and assistance provided by the appellant's wife on the basis of three hours services per day. There was no challenge to this. For future services the trial judge allowed $211,640 on the basis of two hours services per day. The appellant submitted that $317,461 should have been allowed on the basis of three hours services per day. There was quite a range of medical opinion as to the appellant's need for assistance, and some conflict over the evidence of the need in fact encountered, particularly in relation to the appellant's bowel care. The trial judge arrived at the three hours services after consideration of this evidence, and continued - "As far as future care is concerned, once he recovers a substantial award of damages I believe his depression will lift considerably. He will be able to have proper and adequate accommodation especially adapted for wheelchair access including access to the bathroom on his own and to the kitchen enabling him to increase his independence. In those circumstances, even allowing for the possibility of continued bowel accidents, I think it is proper to allow 2 hours per day at the rate of $14 per hour for a period of 30 years for the period of his life expectancy, a figure of $211,640." The reference to thirty years was a slip, and the figure of $211,640 reflected the correct period of thirty-two years. It is clear enough that the estimate of two hours per day turned upon the view that there would be a lesser need for services because a degree of lifting of depression and improved physical surroundings would let the appellant increase his independence, and inferentially that his independence would in fact increase. The trial judge had earlier referred to the fact that the appellant's present home was ill-equipped and restricted his independence in his ability to manoeuvre his wheelchair and by other inhibiting features, and had expressed the beliefs that the appellant's independence should improve markedly when he had adequate facilities in his home for wheelchair access and that when his financial needs were met "his depression should lift to a considerable extent and he will probably come to terms with his injury and consequently this also should affect favourably his ability to care for himself". The appellant submitted that there was error in relation to both lifting of depression and improved physical surroundings. There was no doubt that the appellant had not come to terms with his paraplegia and suffered significantly from depression, and I do not think that there was a sound foundation in the evidence for a considerable lifting of the depression. Dr Shand for the respondent agreed with the opinions of Drs Greenberg and Robbie for the appellant. Dr Greenberg thought that there was a poor prognosis for the appellant's depressive state. Dr Robbie thought the appellant had on-going low-grade chronic depression, and although he said that continuing litigation "may be helping to keep certain aspects of all this going" his 4 UNREPORTED JUDGMENTS view was that the appellant has a way to go yet and "it rather looks as though he is likely to remain an angry man". Dr Shand thought that the prognosis for a better adjustment was not good whether or not the appellant received a substantial award from the court. The only note of optimism was from Dr Kendall who observed (in the context of desirable interaction with others) that "if he has adequate financial backing, his self esteem will improve, he will feel less dependent and therefore less passively-aggressive". From the description of the services provided by the appellant's wife, there was little room for a lesser need for services as a result of improved physical surroundings. Taking account also of a likely increased need for services in the latter part of the appellant's life, I consider that the basis of two hours services per day was erroneous to an extent calling for correction on appeal. This challenge succeeds. FUTURE MEDICAL AND OTHER TREATMENT There were a number of separate items of this nature, some of which were challenged and other of which were not. The respondent conceded the items of urology ($1,661) and medication ($11,681). The appellant abandoned the challenge to the item for occupational therapy consultations ($1,853). That left the items of endoscopy ($7,990), hospitalisation ($36,331), physiotherapy ($93,327), and psychiatric counselling ($8,825). The trial judge declined to allow the item for endoscopy, more correctly for annual endoscopy testing, because it "was not thought necessary by either Associate Professor Jones or Dr Yeo". Neither Associate Professor Jones nor Dr Yeo specifically referred to endoscopy, and the conclusion that they thought it unnecessary depended upon whether their reports were such that they would be expected to have referred to it if thought necessary. I do not think that their reports were of that kind, particularly when there was nothing to indicate that they had in mind either the gastric reflux or the oesophagitis found prior to the hearing. In these circumstances, it seems to me that the explanation given by Dr Kendall of the need for annual endoscopy testing, which should be distinguished from a course of treatment, was convincing and effectively unchallenged. I do not accept the respondent's suggestion that annual endoscopy testing was thought to be, or would be, part of the appellant's periodical hospitalisation and included in that item. This challenge succeeds. The trial judge allowed $36,339 for hospitalisation on the basis of one week's hospitalisation every two years. The appellant submitted that he should have allowed $72,670 on the basis of one week's hospitalisation each year. The biennial period came from the report of Dr Yeo, the annual period came from a report of Associate Professor Jones (both as averages), and a report of Dr Kendall included, "To be on the safe side one should think in terms of at least one week per annum...". There had not been a need for hospitalisation in the five years preceding the hearing. This was seen by the trial judge as favouring the opinion of Dr Yeo, and particularly where Dr Kendall sought "To be on the safe side" I see no error in the preference for that opinion. This challenge fails. The trial judge allowed $9,469 for physiotherapy. The appellant submitted that he should have allowed $102,796. The difference lay in the extent of physiotherapy needs. The amount allowed was on the basis of four sessions per year, while the increased amount was on the basis of two sessions per week less a 15 per cent discount. There were conflicting medical opinions on the need for physiotherapy. In essence, the trial judge took four sessions per annum because Associate Professor Jones thought that physiotherapy would be required in that frequency in the last ten to fifteen years of the appellant's life and there was URJ SANTIAGO v BARCLAY BROS (Giles AJA) 5 some, but unconvincing and undetailed, reason to think that there would be occasional greater need. That no more was warranted was indicated by the fact that none had been ordered by the appellant's treating doctors (or had by the appellant), that a number of doctors (including rehabilitation specialists) who gave evidence of the appropriate treatment regime did not include physiotherapy, and that the one medical opinion to the contrary did not adequately explain the necessity for or nature of the physiotherapy. It was submitted that the trial judge had failed to take into account some of the evidence of Dr Kendall in providing the last mentioned opinion, although I see no reason to conclude that he failed to do so, but principally that the evidence of Associate Professor Jones when properly understood and placed in context favoured more physiotherapy. Associate Professor Jones had said that if the appellant had episodes of back pain or upper limb pathology it "might be considered that physical therapy and the local application of medications might be indicated for his condition", and by pointing to evidence that the appellant was experiencing back pain it was said that the greater need was established. In my view the possibility of some physiotherapy prior to the last ten to fifteen years of the appellant's life was accommodated by the allowance made, it was open to the trial judge to reach the conclusion that the evidence for anything more was unsatisfactory and that he was not persuaded that any greater need had been established, and no reason has been shown to take a different view. This challenge fails. The trial judge made no allowance for psychiatric counselling for two reasons, because the appellant had neither sought nor been prescribed such treatment (and his general practitioner Dr Kennedy provided "general support and counselling") and because his impression of the appellant was that in any event he would not consult a psychiatrist. The appellant submitted that an allowance of $8,825 should have been made, not for ongoing psychiatric treatment but for what was described as periodical review of his psychiatric condition. Such a description is rather at odds with the evidence on which the appellant relied, Dr Kendall's opinion that psychiatric counselling and consultation would be required from time to time, and a review in the abstract would not seem to have been to the point. The point was whether a need for psychiatric treatment beyond the support and counselling provided by Dr Kennedy had been made out, and I see no error in the trial judge's conclusion that it had not. This challenge fails. GENERAL DAMAGES The trial judge allowed $240,000. The appellant submitted that he should have allowed $275,000. It is of interest, but I make no further use of it, that the parties proffered to the trial judge ranges of $200,000 to $250,000 (respondent) and $225,000 to $275,000 (appellant). The trial judge said, after reminding himself of the need to avoid double compensation - "The injuries speak for themselves. In addition to the high degree of paraplegia the plaintiff suffered, he also suffered bony and other internal injuries which caused him considerable discomfort over a long period of time. His condition is clearly set out in the medical reports and it is a devastating injury for a young man in his position. In addition, I am satisfied he has had difficulty in coming to terms with this injury and consequently had suffered from depression. I do believe, however, that once this case is concluded, the future security of his wife and family is taken care of and he has appropriate accommodation and facilities in which to live, his depression should improve markedly and that he should 6 UNREPORTED JUDGMENTS become more reconciled to his injury and achieve a greater level of independence. It must be said, however, that this injury calls for substantial general damages and I award a figure of $240,000." The appellant's submission was that the $240,000 was outside the range of sound discretionary judgment, and that the trial judge's assessment was affected by an over-optimistic view of the likely improvement in the appellant's depression and independence. For reasons earlier given, I consider that there was error in his Honour's view of these lastmentioned matters, but there was otherwise a proper consciousness of the undoubted severity of the appellant's injury and the effect on his life. Even on a non-optimistic view of likely improvement in the appellant's depression and independence, I consider that the $240,000 was an appropriate figure for general damages and would not interfere with it. This challenge fails. The result is that the award should be increased by $105,821 in respect of future services and $21,332 in respect of future medical and other treatment. The judgment should be set aside and in lieu thereof there should be judgment for $1,909,483. The appellant succeeded on some, but only some, of his challenges, although his success was not insignificant in money terms. In the particular circumstances, there should be no order as to the costs of the appeal save that the respondent should pay one half the appellant's costs of preparation of the appeal book. 1. Appeal upheld (in part). 2. Judgment below set aside except as to costs. 3. In place of judgment below,and to take effect from the same date, judgment for plaintiff (appellant) in sum of $1,909,483. Representation: Counsel for the Appellant: DF Jackson QC with LA Levy Solicitors for the Appellant: Blessington Judd Freeman Lazarus Counsel for the Respondent: WH Nicholas QC with SRW Emmett Solicitors for the Respondent: Ebsworth and Ebsworth