PLEASH v BUNT SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL MAHONEY AP and SHELLER JA 7 December 1995 [1995] NSWCA 372 Mahoney AP. The Court has come to a conclusion in this matter and I will ask Sheller JA to give the first judgment. Sheller JA. Edna May Pleash appeals from a decision of Gallen DCJ in the District Court at Newcastle on 6 June 1995 in proceedings brought against the appellant by the respondent, Noelene Annette Bunt, to recover damages for injuries suffered in a motor vehicle accident. Liability was admitted. On 12 September 1993 Mrs Bunt was a passenger in a motor vehicle involved in a collision with another motor vehicle driven by the appellant at the intersection of Turton Road and Griffiths Road, Lambton. At the time Mrs Bunt was aged fifty-five. She was fifty-seven at the time of the trial. When the collision occurred Mrs Bunt was sitting in the front passenger's seat of the vehicle wearing a seatbelt when it was struck violently by the vehicledriven by the appellant. As a result of the collision Mrs Bunt was thrown about the inside of the vehicle. Her left leg was propelled forward so that her left knee flew up and her left foot hit the dashboard of the vehicle. As a result the left side of her left leg was badly bruised and she suffered shock. Her left foot was cut but did not require sutures. X-rays taken in the Casualty Section of the Mater Hospital to which she was taken showed no fracture. She was not treated at the hospital but was allowed to go home. She suffered low back pain of some severity. Gallen DCJ was satisfied that although previously in her lifetime Mrs Bunt had suffered occasional bouts of back pain the accident had aggravated this condition. His Honour compared the results of an examination of Mrs Bunt carried out by Dr Leeder in April 1993, when she had a range of movement, extension, flexion, etc which was consistent with her having no serious degeneration of the back, and the condition revealed by a CAT scan carried out after the accident on 6 October 1993. He was satisfied that as a result of the trauma involved in the collision, the condition of Mrs Bunt's back found by the CAT scan comments and in accordance with the opinions expressed by Dr Leeder and a surgeon, Dr Smyth, the plaintiff had chronic back pain in the lower back, and that this was caused by damage to the discs at L3/4, L4/5, L5/S1 caused by the collision of 12 September 1993. His Honour found that Mrs Bunt also suffered bruising to her body from which she had recovered, bruising to the abdomen and chest and for a short period some pain in her neck. Mrs Bunt had for many years suffered from depression. One consequence had for a time made her too anxious, too lacking in confidence, to drive a motor vehicle. However, the trial judge accepted that by the time of the accident she had substantially overcome this problem as a result of medication and counselling. For six or seven years before the accident she had been driving motor vehicles. As a result of the accident Mrs Bunt again became affected bya psychological reaction in a way which was described as manic depressive or chronic depressive illness. Dr Dyball, who saw Mrs Bunt on 26 October 1994 and whose report the 2 UNREPORTED JUDGMENTS appellant tendered at the trial, said that Mrs Bunt had recently resumed driving and hopefully would progress. However, Gallen DCJ preferred the somewhat more pessimistic view of Dr Lambeth who had been treating Mrs Bunt since 1986. Dr Lambeth was of opinion that the accident had exacerbated a bipolar disorder previously reasonably well-controlled and in particular had made Mrs Bunt phobic about driving. In Dr Lambeth's opinion the effects of the accident had destroyed the reasonable degree of independence Mrs Bunt had achieved. In his view Mrs Bunt needed to remain on her present treatment and continue seeing her psychologist, Mr Raymond Dorling. This might take a considerable period of time and given the past history one could not be particularly hopeful about the outcome. Dr Lambeth said: From a practical point of view I would not be at all surprised if Mrs Bunt were unable to resume any form of independent driving again given her highly vulnerable psychological state .... In a later report of 17 January 1995 Dr Lambeth said that Mrs Bunt continued to have difficulties with driving and he believed that this would be chronic and permanent. Mrs Bunt gave evidence that she had tried to drive when visiting her daughters. She used back roads and avoided main roads, traffic lights and heavy traffic. Gallen DCJ concluded that as a result of the accident Mrs Bunt suffered a reaction which rendered her not capable of driving except to a limited extent. These limitations in her capacity would continue indefinitely. At the time of the trial Mrs Bunt complained of lower back pain which she said she suffered every day according to what she was doing but particularly when she sat for a long time. This was not helped by a stone in weight that she hadput on as a result of medications she was required to take for her post-accident condition. She complained that she suffered pain from time to time in her left leg down to the ankle. This was apparently associated with the back pain. She said that her right leg was no longer a problem except when she did something strenuous. She complained of pain after working. After the accident Mrs Bunt continued part-time work in the TAB business, which she conducted in partnership with her husband, for a limited time each week, namely, Thursdays, Saturdays and occasionally on Sundays. This was the pattern of work she had engaged in before the accident for about twenty-four years. His Honour concluded that she would probably continue to work for five years in a limited way at the expense of some pain to her back and leg. However, he said that but for the accident she would have continued to the age of sixty-five, that is approximately two and a half years longer. Mrs Bunt complained of sleeplessness since the accident but his Honour did not consider this loomed large in her disabilities. She also suffered from a lump in the lower right leg but this had resolved. His Honour was satisfied that it was reasonable for Mrs Bunt to continue with physiotherapy in the form of heat treatment and massage and to take antidepressant tablets. Before the accident Mrs Bunt had enjoyed gardening but after it she was able to do very little. She took four tablets of Panadol every day and she saw her general practitioner some six to seven times a year. His Honour was satisfied that Mrs Bunt's ability to lead a normal life had been significantly impaired as a result of the injuries she sustained in the accident, the threshold set by section 79(1) of the Motor Accidents Act 1988 (the Act). His Honour was of the view that the URJ PLEASH v BUNT (Sheller JA) 3 appropriate proportion of the maximum amount to award to Mrs Buntfor non-economic loss was 35 percent. In coming to express this percentage his Honour said: ... Lam required, I think, to assess the appropriate percentage of a most serious case, the statutory amount being now $222,000 .... The amount arrived at by applying 35 percent was $77,700 which his Honour awarded for non-economic loss. Out-of-pocket expenses were agreed at $5,329. His Honour was satisfied that Mrs Bunt would have future out-of-pocket expenses which he assessed at a total of $6,728.52. Mrs Bunt made no claim for past economic loss. For future economic loss he awarded $18,000 on the basis that she would continue to be able to work up to 130 weeks before attaining the age of sixty-five. His Honour assessed the amount on the basis of a loss of $222 per week accruing in five years from the date of trial. The total verdict was $107,757.52. The appellant challenged three items in the assessment of damages, the award for non-economic loss, for future out-of-pocket expenses and for future economic loss. In respect of the amount allowed for non-economic loss the appellant urged that his Honour had made four errors: . he had misapprehended the facts concerning Mrs Bunt's back injury, . there was an error of principle in the application of section 79 of the Act; . the amount awarded was so high as to demonstrate error; and . that it was not open to his Honour to find that the threshold test set in s 79 had been passed. I shall deal with these four matters in that order. The challenge to the findings of fact concerning Mrs Bunt's back injury centred on his Honour's conclusion that her back condition was caused by damage to the discs at L3/4, L4/5 and L5/S1 and that this damage was caused by the collision on 12 September 1993. The appellant argued that the material before the trial judge did not support the conclusion that the accident caused damage to the discs. Rather, the evidence pointed to the back condition being of a degenerative nature. Mr Hislop QC, who appeared for the appellant, took the Court to the report of the consultant radiologist which referred to osteophytic ridging of the opposing vertebral body surfaces associated with an annular bulge of the discs at each of the levels which his Honour mentioned with changes slightly more marked in the upper discs. The radiologist expressed the conclusion there was marked degenerative change in those discs. There was no other abnormality. This conclusion based upon the scan seemed to be consistent with the radiologist's comments about a plain X-ray which had been conducted at the same time and which was referred to in the report. However, his Honour based his conclusion on a report by Dr Smyth, who examined the results of the CAT scan. Dr Smyth said that it was noted on the CT scan that there was bulging at the three discs and this would be the cause of Mrs Bunt's back problem. A little later in his report he referred to the condition of the three discs as an impairment. Under the heading 'Relation to Incident', Dr Smyth said: [Mrs Bunt's] present impairments are directly related to the incident of 12 September 1993. 4 UNREPORTED JUDGMENTS Based on this report it was open to his Honour to conclude that the accident caused the annular bulge of the discs. Dr Smyth's report was tendered by Mrs Bunt. He was not required for cross-examination. His Honour drew a contrast with the result expressed in that report and the examination Dr Leeder hadconducted in April 1993. The results of that examination appear from Dr Leeder's clinical notes which said 'back and full flexion and extension' and refer to a number of exercises that Mrs Bunt was required to do, each of which was described as normal. It is true to say, as Mr Hislop pointed out, that there is a note that the X-ray showed a narrowing of L2/3 and 3/4 and a note which, although it is difficult to read, may be 'degenerative change.' However, at the trial submissions were put about what these notes meant. On the material before his Honour it was quite open to him to draw the conclusion he did by comparing the opinion expressed by Dr Leeder in April 1993 and the opinion expressed by Dr Smyth in his report. In my opinion the appellant has failed to demonstrate that on this critical issue his Honour misapprehended the facts. I am quite satisfied that his Honour was entitled to come to the conclusion that he did about the nature of Mrs Bunt's back problems and the cause of them. The second error to which the appellant referred, the error of principle, started by drawing attention to his Honour's use of the expression 'the appropriate percentage of a most serious case' rather than 'a most extreme case,' the expression used in s 79 (3) of the Act. I do not regard this as a mistake of any significance. I have no doubt that a judge of the experience of Gallen DCJ was well aware of the nature of the formula and test which he had to apply. In my opinion if one reads that part of his Honour's judgment and the way that he approached the application of the formula, he had the formula set by the statute in mind. This submission is bound up with the next error relied upon, namely, that the percentage fixed by his Honour was so high as to demonstrate error. In this regard it must be borne in mind that it is not the task of this Court to set asidehis Honour's conclusion just because this Court may consider that some different lower percentage is more appropriate. This Court may only intervene if it is satisfied that his Honour made a wholly erroneous estimate. The appellant claims that such was the case. In this regard reference is made to a number of matters. Mrs Bunt was sent home from the hospital after X-ray. The first recorded complaint to her general practitioner was some three weeks later. She suffered a bad back for a period of some two to two and a half years prior to the accident. On one previous occasion she had consulted Dr Leeder for back pain. We were taken to Dr Leeder's notes and remark was made upon the various occasions that she attended at Dr Leeder's surgery after the accident. On more than one of these occasions the attendance was concerned with obtaining reports for medico-legal purposes. As to the psychiatric illness it was said that before the accident Mrs Bunt had been vulnerable and had suffered from a phobia in respect of driving motor vehicles. Mrs Bunt said that she had last seen Mr Dorling in January 1995. Mr Dorling was not called to give evidence. We were referred by way of contrast to Reece v Reece (1994) 19 MVR 103 in which this Court set aside a verdict and reduced the percentage of a most extreme case from some 33 percent to some 22 percent. Mr Hislop said that the injuries in that case were more exceptional than the injuries in this case. Mr Hamman, for the respondent, disputed this conclusion. It was said that Mrs Bunt after the URJ PLEASH v BUNT (Mahoney AP) 5 accident lost no time from work. Reference was made to a comparative extreme case of a person in her thirties who was left paraplegic by a motor vehicle accident. It may be, as Mr Hamman fairly conceded, that the percentage of thirty-five is at the upper end of the range. However, his Honour was satisfied in the passages to which I have referred that there was continuing severe back and legpain. For Mrs Bunt this was a daily occurrence exacerbated by work. As a result of the accident she is unable to drive in any meaningful way and that condition may well continue for the rest of her life. His Honour accepted her inability to continue activities that mean a great deal to many people, such as gardening, caring for and picking up grandchildren. There are obviously wide differences of opinion as to the appropriate percentage to set in a case such as the present but I am not persuaded by any of the arguments that have been put to us that his Honour strayed above the appropriate range. Finally the appellant submitted that his Honour could not be satisfied that the threshold in s 79 (1) of the Act had been passed. For reasons which I have already given, I have no doubt whatever that this was a case in which the threshold requirement was passed by Mrs Bunt. Accordingly, in my opinion, the appellant's attack upon the amount awarded for non-economic loss fails. The challenge to the amount allowed for economic loss in part depends upon the arguments that were put about non-economic loss. However, even if the appellant failed on that part of the appeal, which as I have said I think she does, it is argued that there was no evidence sufficient to satisfy his Honour that there would be a loss of ability to work after five years. In my opinion the medical evidence is sufficient to support the view that Mrs Bunt's condition will deteriorate. His Honour found that her ability to work at present was only on the basis that she was prepared to put up with some pain. It was open for his Honour to conclude that five years was the period for which Mrs Bunt would be able to continue to work. Again, on the arguments advanced to us, I would not be prepared to disturb his Honour's conclusion about future economic loss. This leaves the item of future out-of-pocket expenses. The appellant submitted that these were excessive having regard to the effects of what was described asMrs Bunt's underlying condition. His Honour dealt with a number of items separately. He formed a view as to the need for future treatment by a general practitioner, for future physiotherapy and psychotherapy treatment and for future pharmaceutical expenses. As the appellant pointed out, there is some discrepancy between the figures chosen by his Honour and the records produced to the Court of past attendance, particularly in relation to the general practitioner and Mr Dorling. However, his Honour heard the evidence in this case. He expressed a view about Mrs Bunt which suggests that she has suffered considerable ongoing pain from the accident and for my part I am not satisfied that his Honour's view as to her future needs for treatment are wrong. Accordingly, in my opinion this part of the appeal also fails. For these reasons in my opinion the appeal should be dismissed with costs. Mahoney AP. I agree with what has been said by Sheller JA. In deference to Mr Hislop's submissions I will add two short observations of my own. First, Mr Hislop QC was correct in pointing out that, judged according to the exact text of the judgment, his Honour articulated a wrong test for the application of s 79. With Sheller JA I think that that was in the nature of a verbal slip. I think his Honour intended to apply the test stated in s 79. However, if I be wrong in this, that does not lead to the upholding of the appeal. This is a re-hearing and this court itself 6 UNREPORTED JUDGMENTS would be required to apply to the facts as finally accepted the test established by s 79 and this is what the Court has done. Second, I agree with Mr Hislop QC that an assessment of 35 percent within the statute appears at first sight to be high. He would put the matter more strongly than I have. He submits, as I understand the thrust of his submissions, that this Court dealing with the matter on a re-hearing should simply itself conclude that it is too high and substitute a lower percentage. I do not think that this is the accepted approach to the consideration of matters of this kind. The formation of an opinion on matters of this kind, assessments and damages, assessment of percentages and matters of that kind involves a normative judgment, I use 'normative' in a sense in which it has been used in this and other courts as a description of what is here involved. I mean by this that as I have indicated in other cases, it is not correct to approach the review of such an assessment upon the basis that there is one percentage and one percentage only which is in the relevant sense a correct percentage. Whether a judge is correct in the assessment of a particular percentage must be viewed against the background of the range of judgment which is open to him. I have not put that matter as precisely as it has been put in other cases. It is sufficient for present purposes to say that in my opinion the assessment of 35 percent was within the range of percentages which in the exercise of a sound discretionary judgment it was open to a judge to select. I do not think that his Honour the trial judge went wrong in selecting that percentage, wrong in the sense which is relevant in the present circumstances. I do not think that on proper principles this Court should interfere with the percentage chosen by him. I agree with the orders proposed by Sheller JA. The orders of the Court will therefore be the appeal is dismissed with costs. Orders accordingly. Counsel for the appellant: JD Hislop QC; JS Gleeson Solicitors for the appellant: Abbott Tout Counsel for the respondent: SM Hamman Solicitors for the respondent: Stanger and Clarke