THE NOMINAL DEFENDANT v O'DWYER SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KiRBy P and COLE JA 7 September 1995, 7 September 1995 [1995] NSWCA 326 DAMAGES — personal injuries — estimate of case in comparison to "a most extreme case" — challenge to finding of disc injury challenge probably made good but no alteration in estimate of damages — held: Appeal dismissed. DAMAGES — personal injuries — motor vehicle accident — no issues of liability — trial judge (Mahoney DCJ) awards $136,943.20 — appeal challenges estimate of case as 45% of "a most extreme case" — challenge to judge's finding of disc injury - challenge to estimate of future non-economic and economic loss — held: (Kirby P; Cole JA agreeing): (1) In the review of a damages judgment, the Court of Appeal considers the amount of the judgment signified in the order under appeal and is not concerned purely to correct reasoning or particular findings of the court appealed from; (2) Although the finding that the plaintiff had suffered a disc injury was disputable and possibly wrong, it did not affect the proper assessment or that which the Court of Appeal would, on reassessment, provide; (3) Accordingly, the appeal from the orders of the District Court should be dismissed. Kirby P Before the Court is an appeal against an award of damages entered in the District Court by Mahoney DCJ. His Honour was sitting at Bathurst. The proceedings were heard on 6 and 7 April 1995. They resulted in the judgment, the subject of the appeal, delivered on the last mentioned date. Judgment in a motor vehicle damages case The proceedings arose out of a motor vehicle accident which occurred to Mrs Gail O'Dwyer (the respondent) on 6 August 1993. The appellant admitted liability. There was no allegation of contributory negligence. The proceedings therefore came before Mahoney DCJ for assessment of the respondent's entitlement to damages. His Honour returned a verdict and entered judgment in favour of the respondent in the sum of $136,943.20. This was made up as follows: Non-economic loss (45 percent of a most extreme $ 99,900.00 case) Out-of-pocket expenses past $ 1,543.20 Future (cushion) $ 5,000.00 Past economic loss $ 500.00 Future economic loss (cushion) $ 30,000.00 Total judgment $136,943.20 The appellant asserts that the assessment of damages in respect of non-economic loss, future out-of-pocket expenses and future economic loss are appealably excessive. For the appellant, it was put that the proper assessment of 2 UNREPORTED JUDGMENTS damages for non-economic loss should not have exceeded 25% of "a most extreme case", ie $43,000. It was also argued that, consequentially or in any case, the allowance for future out-of-pocket expenses should not have exceeded $2,000. The assessment of damages for future economic loss should not have exceeded $5,000. In the appeal, the matters which have most occupied the time of the Court have been the arguments relating to the percentage proper in this case when compared to "a most extreme case" for non-economic loss and the allowance for the future economic loss which his Honour provided. If the arguments of the appellant were accepted in full, the judgment would be reduced to a sum of $54,043.20. This would represent a substantial victory for the appellant. The injuries and disabilities of the plaintiff The damages awarded related to the motor vehicle accident which occurred when the respondent was driving a four tonne truck proceeding along the Great Western Highway at Lapstone. Out of the corner of her eye she saw an unidentified motor vehicle approaching her. She swerved to avoid this vehicle. The truck which she was driving struck a gutter and rolled over. As a result, various items in the cabin of the vehicle were thrown about. At least one of the respondent's children landed on top of her. She was struck in the left eyebrow by an automotive battery. She was struck in the breast by a tool box. The injuries and disabilities alleged by the respondent are set out in a statement filed under the District Court Rules. The appeal has proceeded upon that basis that the statement represents an accurate compilation of the claims which the respondent made. Principally, they involved, injuries to her neck, both shoulders, a laceration over the left eye and a chest injury. For some time prior to the subject motor vehicle accident the respondent had been employed as a nursing assistant in various nursing homes. On 9 April 1991, ie, before the subject accident, she suffered an injury in the course of her employment with the Ritz Nursing Home. This incident involved an injury to the respondent's back which was further aggravated in the course of the same employment on 20 July 1991. As a consequence of the disabilities which followed these work injuries, the respondent received workers' compensation payments for a period of approximately twelve months. She continued in the employ of the Ritz Nursing Home until 4 December 1992. However, because of the back injury, she was only able to work a few hours each day. At the time of the subject motor vehicle accident on 6 August 1993, the respondent was still suffering from the effects of lower back injury. The respondent had daily pain in the lower back. The pain radiated to the legs, particularly to the left leg. She did not believe that immediately prior to the car accident she could have returned to full duties as a nursing aide, or even have performed that work on a part time basis. It was in this situation that, at the time of the injury to the respondent, she was performing work in connection with a business which her husband had initiated in the disposal of trade waste. For the most part, she was limited to bookwork. However, as the circumstances of her injuries indicate, from time to time she drove the truck which was the mainstay of the husband's business. The respondent conceded under cross-examination that her back injury had continued to give her significant problems. She agreed that she could not lift heavy objects, twist or turn, stand or sit for lengthy periods. This was one reason why, in the waste business, she substantially concentrated on the bookwork. Another reason URJ THE NOMINAL DEFENDANT v O'DWYER (Kirby P) 3 was that her husband was unable to read or write with ease. This was therefore a sensible deployment of her economic capacity. The appellant conceded that the injuries to the respondent, as found by Mahoney DCJ, limited the respondent's capacity to work before the injuries for which the appellant was liable. Before the trial, the respondent and her husband had disposed of the truck which was used in the trade waste business when it "blew up". They had turned to work in a fruit shop at Katoomba. That work was the work which they were each performing at the time of the trial. Mahoney DCJ found that the respondent had suffered a wide variety of injuries in the subject accident. These included (i) a whiplash injury to the cervical spine; (ii) a soft tissue injury to the bones forming the shoulders and collar bone and upper ribs anteriorly; (iii) a laceration to the left eyebrow; (iv) soft tissue injuries to both shoulders; (v) a left bicipital tendonitis with subacromial bursitis; (vi) soft tissue injuries to the left and upper thorax; (vii) severe bruising to the sternomastoid region; (viii) soft tissue injuries to the left and right retroclavicular triangles. These latter conditions were revealed to be the product of a congenital abnormality in the respondent which led to her susceptibility to this condition; (ix) damage to the left and right upper costal cartilage components of the rib cage; (x) left sided capsulitis of the shoulder (xi) osseous lesions to both sternoclavicular joints (xii) damage to the sternoclavicular joints likely to progress in a "sooner rather than later" post-traumatic osteoarthritis; and (xiii) cervical and thoracic spondylitis. His Honour went on also to find that the respondent had suffered a disc lesion at level C5/6 either caused by the motor vehicle accident or aggravated by it. It is this finding which was the subject of the principal attack in the appeal. The appellant contended that the injury to the respondent's neck was muscular or ligamentous and not to be found in a disc lesion of the kind which his Honour determined. A possibly erroneous finding of a disc injury The attack on his Honour's actual finding in this regard has some merit. The overwhelming effect of the medical evidence which was adduced at the trial, if not the only medical evidence, supports the contention which the appellant has urged upon this Court, viz that the finding of a disc injury, far from being the better analysis the medical evidence, as his Honour felt, was not so supported. The Court was therefore bound to look very carefully at the two arguments which the appellant urged upon it. If this is, as the appellant contends, a case only of soft tissue injury and not of disc injury, then the assessment of the case as 45% of "a most extreme case" would, in my opinion, be so high as to authorise the intervention of this Court. However, the Court does not, in its appellate review, disturb the orders of the primary judge simply to correct an error in fact finding or in the reasons of the judge. The Court's function is to correct his Honour's orders if that is the proper and appropriate outcome of the argument. 4 UNREPORTED JUDGMENTS It is therefore pertinent to note two medical reports which were drawn to the notice of the Court today. For some reason they were not included in the appeal papers. Each of the reports was, it was agreed, tendered at the trial. The first is a report of Dr Peter Burgess, an orthopaedic surgeon whose evidence was accepted by Mahoney DCJ. Dr Burgess concluded that the respondent had "a soft tissue injury to her neck, that it was complicated by a mild to moderate whiplash injury with commensurate symptoms and signs". In Dr Burgess' opinion, persistence with the complaints of which the respondent complained to him and at the trial, was, although long, not uncommon in such a case. It accounted for the description of her disabilities which he had received and which was substantially repeated at the trial. At the close of his report Dr Burgess expressed the following conclusion as to the residual disabilities consequential on the injuries to the upper body of the respondent: "Taking all things into consideration, I feel that the sternoclavicular costal cartilage problems and the 'painful arc syndrome' represents a 30% permanent loss of effective use of the left arm at or above the elbow. On the right hand side the 'painful arc syndrome' in the degree which it's currently present, represents a 15% permanent loss of effective use of the right arm at or above the right elbow. As previously stated, the prognosis for the future is somewhat guarded". This opinion was further reinforced by the opinion of Dr Robert Breit. He was the orthopaedic surgeon who apparently concluded that the cause of the respondent's continuing symptoms was to be found, in part at least, in her congenital condition and what he described as the "thoracic outlet syndrome". Dr Breit said that "this problem is very difficult to diagnose even with objective testing". However, he clearly formed the view that it was the principal residual condition of the respondent. As a consequence, the sternodavicular joint would never return to normal. It "may at some later date give her further trouble". For the appellant it was put that the position had basically remained unchanged. The fundamental problem was still in the respondent's soft tissues. The appellant had demonstrated to the satisfaction of the Court that the disc injury, which was the foundation of Mahoney DCJ's assessment, was an incorrect premise. However, when these two reports are examined, they show that this was by no means an ordinary case of soft tissue injury. This was a case where there is a diagnosed painful arc syndrome which is an objective condition accepted by the medical witnesses whom the judge believed as giving a physiological basis for the respondent's symptoms. It was a condition which was likely to continue. Indeed, it was one likely to cause future disabilities. It was suggested that notwithstanding this conclusion, the 45% assessment found by the judge was still appealably excessive. I agree that it is high. However, the condition from which the respondent suffered was further complicated by her pre-injury work accident. This meant that when injured, in the circumstances which called upon the appellant to compensate her, she was already a person with earlier back disabilities and limitations. There had then to be added the very substantial disabilities in her shoulders caused by the subject accident. I cannot, therefore, conclude that the assessments by Mahoney DCJ, who had advantages which this Court does not enjoy, is appealably excessive. The first challenge must be dismissed. URJ THE NOMINAL DEFENDANT v O'DWYER (Kirby P) 5 Economic loss and loss of economic capacity In respect of the economic loss, the amount allowed is also a little high. However, I do not believe that it is so high that this Court would be authorised to disturb it. Nor do I believe, if this Court were to reassess the matter, that it would reach a conclusion significantly different from that which the primary judge reached. All that we would be doing would be correcting his Honour's reasons. That is not our function. So far as the "cushions" allowed for future economic loss or loss of economic capacity and future medical expenses are concerned, I am, for the same reasons, far from convinced that the allowances made by his Honour were incorrect. The approach which he took, to provide a "cushion", was the correct one, given that the respondent had returned to economically productive activities which are, or were at the time of the trial, shown to be within her capacity. However, the situation in small businesses is notoriously unpredictable. Whilst the business in Katoomba might continue indefinitely, as I hope it does, it is proper for a judge in such a case to make some provision for the worst possibilities. They would include the future economic loss of a woman who had a good employment record, who was already disabled in her back, and who, on top of this, as a consequence of the subject accident, had suffered further serious, persisting and potentially disabling disabilities in her shoulders. For these reasons I do not consider that the attack on the future loss of economic capacity is made good. Disputed medical expenses In so far as the disputed medical expenses are concerned, their provision depends very much on future trouble which the respondent might have. Both Dr Breit and Dr Burgess predicted the likelihood, or possibility at least, of future difficulties. Dr Burgess, I remind myself, said that the future was to be viewed as somewhat guarded. It is true that two medical witnesses called for the appellant disagreed wholeheartedly with the opinion which Dr Burgess advanced. They were Drs Lawson and Middleton. However, their evidence was emphatically rejected by the primary judge. This Court cannot substitute its impression of those opinions in the circumstances of this case. The net result is that, although it is in my opinion that the appellant has shown that a mistake was probably made in the finding of a disc injury, it was a mistake without consequences relevance to the level of the respondent's damages. The judgment which was finally entered has not been shown to be wrong. I would therefore propose that the appeal be dismissed with costs. Cole JA I agree. Kirby P Such is the order of the Court. Appeal dismissed with costs. Counsel for the appellant: K P Rewell Solicitors for the appellant: Creagh & Creagh Counsel for the respondent: G A Laughton Solicitors for the respondent: McIntosh McPhillamy & Co