MILLER v TURNER SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY and POWELL JJA 17 March 1995, 17 March 1995 [1995] NSWCA 296 Damages — Personal injuries — General damages — Future economic loss — Inadequacy Powell JA The Appellant, Mrs Miller, who was the Plaintiff in the proceedings at first instance, has appealed to this Court from a verdict found, and judgment entered, in her favour by McLachlan DCJ in the District Court on 15 September 1994. In the proceedings which led to that verdict and judgment, Mrs Miller had sought to recover damages in respect of injuries, and the sequelae thereof, which she had suffered in a motor accident in which she was involved on 7 November 1992, when a motor vehicle in which she was a passenger with her young daughter, and which was being driven by her husband, was struck from behind, forced into collision with another motor vehicle and then forced into further collision with the Fire Station on the hill approaching Pymble railway station. As a result of the collision, Mrs Miller was taken to the Hornsby Kuring-gai Hospital where she was held for observation for a time prior to her being discharged to home in the company of her husband. At the time, there appeared to have been few overt signs of injury, and the Hospital records do not record more than a few complaints of tenderness in areas near the neck. The notation of whoever it was who conducted the examination was recorded as "non-significant soft tissue injuries". Mrs Miller consulted her local medical practitioner, Dr Korner, on the following Monday morning, 9 November 1992. At the time, she complained of soreness and pain and generally being uncomfortable. Dr Korner's observations were that there was tenderness over the left shoulder posteriorly; there was restricted rotation of the head to the left, with a restricted lateral flexion of the neck; her low back was tender over the sacroiliac joint; there was pain on flexion of the lower back; and there were bruises in the area of the left breast and right shin. A certificate enabling Mrs Miller to absent herself from work for a short period was provided. In fact, Mrs Miller's condition did not subside, and she did not return to work for a period of about three months. The fact that she did not do so was, as it would seem, due, not merely to the immediate consequences of the injury which she had suffered in the accident, but was also due to the fact that, by late December 1992, Mrs Miller appears to have succumbed to an anxiety reaction. The causes of this reaction appear as if they may have been many and varied, but of significance was the fact that, at the time of the accident, Mrs Miller was about three months pregnant and she was, not unnaturally, deeply concerned as to the fate of her unborn child. As a result of that anxiety condition, Mrs Miller was referred by Dr Korner to a Ms Stott, who appears to be a well-known and respected clinical psychologist, in order that she might receive psychotherapy. 2 UNREPORTED JUDGMENTS Although there appears thereafter to have been a little improvement in the anxiety condition, Mrs Miller's physical condition does not appear to have improved at all during the following two or three months, and as a result of the pain which she continued to suffer, Mrs Miller was admitted by Dr Hinde, her obstetrician, to the King George Memorial Hospital for bed rest. Whilst it is to be noted that, in a report dated 12 April 1994, Dr Hinde recorded that Mrs Miller's admission to hospital was due not solely to the lumbar backache but to other conditions which attended her pregnancy, it seems clear enough that the primary cause for her admission to hospital, at that, time was the pain of which she was complaining. Before Mrs Miller had been admitted to hospital, however, she had attempted to return to her employment, but was unable to continue for more than a short period, and, thus, went on leave at a time earlier than, so she said, she would otherwise have done. Notwithstanding Mrs Miller's admission to hospital, her pain continued and, on her discharge from hospital, she was referred to Dr John Segelov, a neurosurgeon, for assessment. At first, Dr Segelov appears to have thought that a time might come when some form of surgical intervention would be called for. However, at a later assessment, following the birth of Mrs Miller's child and the passage of a period of about nine months, Dr Segelov recorded: "The assessment of disability in this patient in respect of her back and leg pains is difficult in the absence of signs of nerve root pressure and radiological abnormalities on the CT scan and CT myelogram. The history remains very suggestive of nerve root pressure but I have been unable to localise this." In recording Dr Segelov's opinion on this later occasion I have, however, anticipated matters a little. Mrs Miller's complaints of pain, as I have indicated, continued, and by reasons of those complaints, Dr Hinde advised that the birth of her child ought to be induced. Accordingly, at the beginning of April 1993, when Mrs Miller was about thirty-six weeks pregnant, she was admitted to hospital for an induction, and her child was delivered without any sign of disability. In the report to which I have earlier referred Dr Hinde recorded: "While there is no absolute contraindication to a further pregnancy for Mrs Miller, I do not think this would be wise for her. I believe there is 100 per cent per cent certainty she would suffer again significant back pain with radiation to the lower limbs which could seriously interfere with her mobility and necessitate bed rest and the additional care this would of necessity require. As she delivered normally in this present pregnancy I do not believe her need for Caesarean Section is any greater as a result of her back injury." According to Mrs Miller, it had been her intention that, having taken a year off following the birth of her child, she would return to her employment. However, as the result of her injuries and the sequelae of them, she was unable to return to her employment and her employment was ultimately terminated. The fact of that termination has led to a claim for damages for, inter alia, the loss of the benefits which it was claimed Mrs Miller would have received by way of superannuation if she had continued in her then employment. As a result of Mrs Miller's continuing complaints, she was referred to Dr Segelov again. Dr Segelov's later opinion has been recorded by me above. URJ MILLER v TURNER (Powell JA) 3 In addition, Mrs Miller was referred to Dr Phillip Greenberg, a psychiatrist, who was retained on behalf of Mrs Miller, and Ms Stott, who continued to treat Mrs Miller. After referring to the need for orthopaedic and neurosurgical information. Dr Greenberg's opinion was to the following effect: "Secondarily to the pain, discomfort and disability, loss of her employment and the economic consequences of this as well as the strains on her marital relationship because of her emotional state and the inhibition of sexual relations, Mrs Miller suffers from a Depressive State. The prognosis for this must be guarded and depends primarily on that for her orthopaedic condition and her being able to get back to some employment within her physical capacity." Mrs Miller was examined on behalf of the Respondent by Dr Robert Cameron, a consulting surgeon, Dr John Bentivoglio, an orthopaedic surgeon, and Dr Eva Lowry, a clinical psychologist. Dr Cameron's opinion, which was contained in a report provided by him in October 1993, was to the following effect: "Radiological examination has shown no abnormality and _ physical examination today revealed no objective evidence of musculoskeletal or orthopaedic abnormality in her back or lower limbs. Mrs Miller has complained of psychological stress since her motor vehicle accident, initially focusing on the outcome of her pregnancy. She has been treated by a psychologist and her general practitioner since the accident. Some problems are said to remain but a detailed history in this regard was not attempted. I consider that Mrs Miller has fully recovered from any physical injury sustained in the motor vehicle accident of 7/11/92. Any continuing symptoms are considered to be of a non-organic nature or related to her general lack of physical fitness. There is no indication for further medical treatment or investigation in regard to her back and leg symptoms. I consider that Mrs Miller is fit to return to her former employment without restriction. On consideration of all the information available to me in this case it is my opinion that Mrs Miller's ability to lead a normal life is not significantly impaired due to injury caused by the motor accident on 7/11/92. " Dr Bentivoglio's opinion, recorded in a report provided by him in January 1994 was to the following effect: "This lady would have sustained soft tissue injuries to multiple parts of her body together with a musculo-ligamentous strain of her low back region. On today's physical examination there is no evidence of any nerve root irritation or compression to suggest that she will come to more aggressive lines of treatment than those she has already had. I would anticipate that any residual symptoms that this young girl had will resolve completely with the passage of time. I do not feel that any further treatment is indicated for her at this time. Any activities that are particularly arduous in nature may cause her some ongoing back discomfort. I feel that this lady would be capable of performing her full pre-injury duties at this time. I feel that the reason she has not resumed work is because of family restrictions placed upon her by caring for 2 young children." Dr Lowy's opinion, as recorded in a report provided shortly before the trial at first instance, was to the following effect: 4 UNREPORTED JUDGMENTS "T am pleased to report, however, that she does regard herself as somewhat improved over the last year and that she is ready to extend her activity with the rehabilitational professional from CRS at some future time. It is also a hopeful sign that she is thinking about undertaking a computer or secretarial course to equip her for future work. Mrs Miller's problems appear to be mainly psychological: excessive monitoring of her symptoms; poor self-esteem due to weight gain and lack of ability to lose it; and the encouragement from her family to support her in a chronic pain lifestyle. I believe that Mrs Miller still demonstrates some exaggeration when she lists her symptoms and her difficulties; this is understandable in the light of the Court case which is due to take place on Wednesday 14 September. On the basis of this interview, I find that Mrs Miller demonstrates a socially and physically limited lifestyle resulting from her psychological reaction to the motor vehicle accident of November 1992. It is this psychological reaction that is continuing to confirm her in a chronic pain lifestyle. Her psychological reaction is due to pre-existing personality factors rather than the result of the injuries which she sustained in the motor vehicle accident. In conclusion, I consider that Mrs Miller's ability to lead a normal lifestyle has been significantly impaired by her own psychological adjustment to the motor vehicle accident of November 1992, rather than by the physical injuries suffered in the accident." Other medical opinions were sought, and provided, on each side, but no great virtue is to be found in recording them, as I believe that what I have recorded above represents the range of opinions contained in the reports tendered on the hearing of the action. The hearing of the action took place before McLachlan DCJ on 14 September 1994. For present purposes, it is sufficient to record that the only oral evidence tendered was that of Mrs Miller and her husband, all the medical and other evidence being in the form of reports which had been sought from various experts, both medical and otherwise, together with a number of relevant documents, such as documents explaining the nature of the superannuation scheme of which at the relevant time Mrs Miller had been a member. While I accept that the Rules permitting such a course to be followed are intended to avoid inconvenience to members the medical profession and to avoid the unnecessary running-up of costs, it, nonetheless, remains the fact that, in cases such as this, a trial judge is placed in a thoroughly unenviable position, if doctors are not called to be cross-examined on their opinions. Further, in such cases, because the weight given to a doctor's opinion depends in great measure on the acceptability or otherwise of the history which he is given and the symptoms which are reported to him, the credibility of a plaintiff, both as a witness and as a reliable historian, more often than not becomes a matter of considerable significance. As far as I can judge it from the various parts of the transcript, to which Mr IG Harrison, who appears today, as he did at the trial, for the Respondent has directed our attention, the Respondent did not seek to challenge Mrs Miller's complaint that she had sustained soft tissue injuries of the type to which I have earlier referred, nor that she continued to complain of pain, which pain she genuinely believed to be derived from the injuries which she had sustained. Rather, the burden of the attack which appears to have been made was, as I understand it, that, whatever may have been the position in the past, Mrs Miller's URJ MILLER v TURNER (Powell JA) 5 disabilities and pain were subsiding and that the probability was that, within a period - it is suggested, at the outside, about eighteen months - Mrs Miller would, as she said she wished to do, be able to return to the work force. This is a matter of some significance in the way in which the trial judge approached the matter. It will be apparent from what I have earlier recorded that, in coming to assess the various elements in any award for damages that he ought to make, the first question which McLachlan DCJ was required to determine was whether the injury which Mrs Miller sustained was limited to soft tissue injury of the type to which I have earlier referred, or whether the injury was one which involved some aspect of the spine and some pressure on nerve centres. A further question which might then need to be determined was whether the complaints of pain which Mrs Miller continued to make were caused by pressure on nerve centres or were in some way the sequelae of the anxiety condition and the subsequent depressive reaction from which she undoubtedly suffered. In the event that it was found that the sequelae of Mrs Miller's injury did involve persisting pressure on nerve centres it would then be necessary to determine she would ever be able to return to the work force and whether, given the medical advice which had been tendered to her, she ought to refrain from seeking to have further children. When he came to deliver his judgment, after he had reserved overnight to reconsider the medical evidence which had been tendered, McLachlan DCJ, after reciting, in a brief way, the nature of the claim and the accident as Mrs Miller had described it. continued: "T accept that she suffered soft tissue injuries to the neck and back, together with other injuries. The claim is quite a large one, it is all set out in Ptl2 particulars; I shall not repeat it here but it does include claims for economic loss and a claim in terms of Griffiths and Kirkmire (sic). Out-of-pocket expenses have been agreed in the sum of $5,236.55. There is a difficult problem of the Plaintiff's psychological reaction to the accident and injuries. The Plaintiffs counsel has put to me that the s79 component should be between 35 and 40 per cent. There is the usual dispute between the doctors, some supporting the Plaintiff and others not. However, the bulk of the evidence supports the conclusion that the Plaintiff is still suffering from a psychological reaction." Then, after referring to the material contained in the reports of Dr Lowy and part of the material provided in the report by Dr Greenberg and the report of Ms Stott. his Honour continued: "The conclusions I reach are that the Plaintiff has no radiological signs to confirm that there is anything seriously wrong with either her neck or back. I reject Dr Searle's opinion that the orthopaedic symptoms and disability could become permanent but in fairness to him he did say that at least two years should pass from the time he saw the lady, in February 1994, before a firm opinion should be given. In passing I see that the rehabilitation expert, Dr Middleton, spoke in similar terms. There has been some talk of surgical intervention; I am not persuaded on the balance of probabilities that any such operation will take place. It could be said that I am being asked to assess the claim a year or two too early but there is the advantage that the Plaintiff will now know her position and can get on with her life. I have no doubt at all that this Court case has been playing on her mind and has aggravated her psychological condition. The Plaintiff agrees that her neck is now not much of a problem and that her back over recent months seems to be improving. I am not a psychologist but I believe that her psychological condition will improve as her back does. I also suspect that her complaints of pain are 6 UNREPORTED JUDGMENTS over-stated. I repeat there are no radiological signs to support the back condition and that comment includes a myelogram." Because the judgment is a little less well ordered than I would wish, for the time being I pass over some material and record that his Honour then continued: "T should add two more findings; the first is that in my view the evidence does not support a finding that the Plaintiff will suffer a superannuation loss. The second is that there have been opinions expressed that the Plaintiff should not have more children. I am not satisfied on the whole of the evidence that the Plaintiff will not be able to have more children in the future." Then his Honour turned to the question of quantifying the various elements in the award which he indicated that Mrs Miller should receive. Of those elements, the most important was that which these days is described as "non-economic loss", in respect of which his Honour formed the view that the Mrs Miller's disability, at the time, was best represented by a figure of 27 per cent of the maximum amount, which figure - I assume, after allowing "the deductable" - his Honour recorded as being $46,740. His Honour then recorded that out-of- pockets were agreed in the past at $5,236.55. The figure which he allowed for "Griffiths v Kirkemeyer damages" - which figure appears to have been the subject of some agreement between the parties - was allowed in the sum of $7,170.42. The figure for past economic loss, which, so we have been informed today, was the subject of at least agreement as to the mathematics involved, was allowed in the sum of $20,058. As to future economic loss, his Honour assessed a sum of $20,000, which sum, it would seem, is probably calculated on the basis of a further fifteen to eighteen months before Mrs Miller could return to her former employment. Finally, his Honour then allowed the sum of $5,000 for future out-of- pockets. The total sums allowed amounted to $104,204.97 for which sum his Honour entered judgment. It will be apparent from what I have recorded that no amount of interest was allowed for in the sums so allowed, but, as it would appear that the question of interest was not raised with his Honour at the time, that fact, together with the fact that no mention of it is made in the Notice of Appeal, in my view, means that we ought not to concern ourselves with it, despite the fact that it has been the subject of some complaint today. The primary complaints which have been made in respect of the components in the award are for non-economic loss and for future economic loss. In relation to the former, Mr H J Marshall, who appears today, as he did at the trial, for Mrs Miller, has submitted that the assessment made by his Honour is so far below the range as to be regarded as one involving a failure properly to exercise the statutory discretion. With respect, I am unable to accept that submission. It seems to me, as I have sought to record earlier, that the primary question with which his Honour was concerned to deal in regard to this matter was the nature and continuing extent of Mrs Miller's disability - was it a continuing physical disability or was it a disability which was, at the time of trial, one which was primarily psychiatric, or psychological, in nature, and which would in all probability resolve itself. It seems to me that the passages from the various reports to which I have earlier referred demonstrated that it was clearly open to his Honour, as he did, to accept the view that injuries which had caused Mrs Miller's disability were limited to soft tissue injuries and that there was no continuing physical disability which would create problems for her in the future. In the light of that finding, the views of Dr Greenberg and Dr Lowy, particularly when coupled with the URJ MILLER v TURNER (Mahoney JA) 7 evidence of Mrs Miller herself, almost inevitably led to the conclusion that the probability was that if, as she said she wished to do, Mrs Miller were to be able to return to the work force within the immediate future, her symptoms would subside. That being a view which was eminently open on the evidence and the assessment to be made for the purposes of s79 of the Motor Accidents Act, 1988, being essentially a discretionary judgment, or, as I prefer to call it, a value judgment, this Court cannot intervene unless there is shown to have been error in the nature of those described in the joint judgment of Dixon, Evatt and McTiernan JJ in House v The King}. It will be apparent from what I have said above that, in my view, no such error has been demonstrated. Nor as, it seems to me, has any error been demonstrated in the manner in which his Honour assessed the amount to be allowed for future economic loss. True it is that, in his Judgment, his Honour has not spelled it all out in detail, but, when it is apparent from the material to which we have had our attention directed today, that it was open to his Honour on the evidence to conclude that the probability was that Mrs Miller would be in a position to, and would, in fact, return to the work force in the reasonably foreseeable future, the sum of $20,000 allowed for future economic loss is shown to be one which can readily be sustained. In the event, I conclude that no error has been demonstrated in his Honour's assessment and I would propose that the appeal be dismissed with costs. Mahoney JA I agree with the orders proposed and generally with his Honour's reasons. I then add three matters: Mr Marshall has in his submissions on behalf of the Appellant commented upon the assessment of non-economic loss at 27 per cent of the worst case. This to my mind is an assessment of a significant proportion. It is to be borne in mind that the scale set up by the Act is to accommodate injuries from the most severe kind down to something which is a good deal less. I think an assessment at 27 per cent of the worst case would be appropriate for an injury which is of a quite substantial kind. It lies, of course, below paraplegia and the loss of limbs but it indicates that the loss has been assessed at a substantial amount. I think that assessment was warranted in respect of the Appellant's injuries here. The second matter to which I would refer is this. Powell JA has pointed out that the essential question in this case is whether the Appellant's back problems are due to an organic or psychological cause. It should be recorded that if they are due only to a psychological cause they are or may well yet be very real to the Appellant and it is not suggested that she is not suffering from the kind of symptoms to which she refers. The problem is that if they are psychological rather than organic in origin they will clear up earlier rather than later. The third matter is a small matter, Mr Marshall in his submissions referred to the possibility that the Appellant will have children in the future. I am satisfied that the judge was referring not to capacity but to whether the Appellant should have further children. In the course of his very brief reference to this he commenced with a reference to the opinion expressed that the Appellant should not have more children. I think that what he meant when he said that the Appellant will be able to have further 1. (1936) 55 CLR 499 504-505 8 UNREPORTED JUDGMENTS children was that she will be able to have more children, having regard to the kinds of considerations to which the medical witnesses referred. T agree with the orders which have been proposed. The order is that the appeal will be dismissed with costs. Appeal dismissed with costs. Counsel for the appellant: HJ Marshall 10 Solicitors for the appellant: Patrick Timbs and Co Counsel for the respondent: IG Harrison Solicitors for the respondent: Abbott Tout