AYERS v STEWART SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL HANDLEY and SHELLER JJA 7 March 1995, 7 March 1995 [1995] NSWCA 35 MOTOR ACCIDENTS ACT — non-economic loss — no question of principle Handley JA This is an appeal by the plaintiff from the assessment of her damages under the Motor Accidents Act by Pain DCJ. She was injured on 28 October 1990 when she was a little over twenty-one. The judge gave judgment in November 1993 when she was twenty-four and a half. The trial judge awarded $47,213.95. The plaintiff has challenged the award for non-economic loss in the sum of $14,300 representing fifteen per cent of a most extreme case. The other components were not in dispute except for one aspect raised by the respondent in a notice of contention. The appellant submitted that the assessment at the level of fifteen per cent was wholly disproportionate to a correct view of her injuries and that this court should intervene and allows a higher percentage resulting in a higher monetary award. The trial judge made no adverse finding against the plaintiff's credit contenting himself with saying that she did not appear to be of stoic disposition. I cannot read this as a finding adverse to the plaintiff reflecting on her credibility and accuracy. Rather, I read it as indicating that she did not hold back in her evidence about her complaints and symptoms. Had his Honour taken the view that the plaintiff was exaggerating I would have expected him to have said so. Moreover she was not cross-examined to establish that she had exaggerated her symptoms or given false evidence about them. His Honour found that in the three years since the accident she had been affected in her ability to walk and to sit for any length of time without discomfort. Her injuries had also affected her ability to drive long distances. A number of her complaints immediately after the accident fortunately had disappeared. She recovered from both the tinnitus and the migraines. The plaintiff had been a very active social sportswoman playing an unusual variety of sports. Apart from volley ball, soccer, cricket, netball, and swimming she also engaged in abseiling and scuba diving. She had competed in the State swimming championships and had training at the Institute of Sport. She played competitive sport during her tertiary education. In addition to her physical injuries the judge noted that she had suffered a hearing loss in her right ear and he accepted that this had been appropriately quantified in the report of Dr Bear of 30 August 1993. Dr Bear found a 52% loss of hearing in the right ear and a 1.1% loss in the left ear and that the binaural loss was 28%. The plaintiff suffered a blow on her right ear in the accident, her eardrum was perforated and there was blood in the ear canal when she was admitted to hospital. The judge concluded that the hearing loss was: "a significant deficit particularly having regard to the profession of psychologist in which the plaintiff has trained which will require her... to spend significant portions of her working life in listening to clients..." He also found 2 UNREPORTED JUDGMENTS that her ability to follow various forms of athletic recreation had been affected and this could also prevent her taking up alterative occupations. This latter aspect is only relevant insofar as it involves an aspect of her non-economic loss. The plaintiff gave evidence that as a result of the injuries to her neck in particular she cannot drive for more than forty-five to sixty minutes without having a break. Her neck was a source of pain, discomfort and stiffness and it seems that these are the cause of the disabilities which the judge found. The plaintiff also suffered a significant injury to her left shoulder which at first was not diagnosed. She was later able to undergo appropriate surgery and the judge found that this had largely overcome her earlier problems. However, her cure was not complete as the reports of Drs Berry and Bornstein and the oral evidence of the plaintiff make clear. She said that the shoulder was better since the operation but it was not like it was before the accident and that during wet weather she experienced considerable pain which she associated with the metal pin inserted during the operation. She also gave evidence of sleeping difficulties associated with pain in the shoulder, numbness and stiffness. The judge found that the plaintiff's ability to lead a normal life had been significantly impaired and that the threshold in s79(1) of the Motor Accidents Act had been satisfied. He said she was a young woman who had suffered a significant setback but that fortunately her chosen career would not require her to exercise her previous athletic abilities. He concluded that an appropriate assessment in relation to a most extreme case was fifteen per cent. With all respect this appears to me to be far too low and a wholly erroneous assessment. This young woman was injured at twenty-one and faces a lifetime of pain and disability. To be in the position from the age of twenty-one that you can't walk for any length of time, sit for any length of time or drive for more than an hour without a break, involves a major disturbance to the normal enjoyment of life of a twenty-one-year old Australian woman such as the plaintiff had been. The matter, however, does not end there. The plaintiff is coping with her hearing loss but it will impact on her ability to carry on a normal conversation in crowded or noisy surroundings. In later life the onset of presbycusis will aggravate her existing deficit. At an age when most members of the community are experiencing only mild inconvenience due to presbycusis, she will be going into a profound state of hearing loss in her right ear and of course binaurally as well. The matter that weighs heavily on me is that the plaintiff's active sporting and associated social activities, because one can't abseil or scuba dive by oneself, were brought to an end by this accident. His Honour did not indicate what view he took of the medical evidence about the plaintiff's shoulder. Dr Berry said that the plaintiff was unfit for activities requiring the repetitive use of her arm above shoulder height and that this condition would not benefit from any further surgery. He also expressed the view that she had ten per cent permanent impairment of her neck and twenty-five per cent permanent loss of the efficient use of her left upper limb. Fortunately the plaintiff is right-handed. Nevertheless, the disabilities assessed by Dr Berry are serious for a woman of her age. Dr Bornstein took a more optimistic view reporting that the plaintiff had a full range of movement in the left shoulder, that it was clinically stable and would improve with further exercise. Nevertheless he thought she might experience minor discomforts and disabilities above waist height and above shoulder height URJ AYERS v STEWART (Sheller JA) 3 in particular. There is, therefore, a significant measure of consistency between the views of Dr Berry and Dr Bornstein so far as use of the plaintiffs left arm above shoulder height is concerned. Our attention was draw to the decision in Burton v Quinn (CA unreported) 12 August 1991 in which Samuels JA said in appeals raising issues under s79 appellate courts should remember that their task is to intervene only if satisfied that the amount awarded was a wholly erroneous assessment of the damages sustained. His Honour referred to Precision Plastics Pty Ltd v Demir 1975 132 CLR 362 at 369. This is the established principle which governs appellate intervention in the assessment of general damages at common law. I am satisfied that this test is met in the present case and I would therefore propose that the appeal be allowed and the judge's assessment set aside. The respondent sought to resist this conclusion on the ground the trial judge had rejected the evidence of the appellant. I have already referred to his Honour's finding that the appellant was not of stoic disposition. As I have said I do not regard this as a rejection of her evidence. The respondent also relied on his Honour's decision to award the plaintiff less by way of past economic loss than the amount claimed in her Pt12 particulars. The plaintiff claimed $6,404.40 for past wage loss. His Honour allowed $3,500. However the evidence and his Honour's reasons indicate that in coming to this decision he relied upon evidence that the plaintiff had given about her intention of taking a holiday during November 1990 at the conclusion of her tertiary education. His Honour's finding did not involve any rejection of the plaintiff as a witness of truth and does not prevent this court from re-assessing on that basis. The other matter relied on by the respondent which was the subject of a belated notice of contention was that the trial judge erred in over-compensating the plaintiff for the loss of wages she otherwise could and would have earned working at the Cessnock Corrective Centre. His Honour allowed 7.35 weeks of the plaintiff's claim under this head disallowing 1.65 weeks. Bearing in mind the basis upon which his Honour arrived at that decision I do not think there was any error which the respondent can offset against any increased amount which the court may award for non-economic loss. I would propose that an award based on twenty-five per cent of the most extreme case be substituted for that arrived at by the trial Judge. This will require a recalculation of some complexity and if counsel are not able to assist immediately I would invite them to bring in short minutes at an appropriate time. Sheller JA I agree. For my part I would emphasise that what we are here concerned with is the appropriateness of a proportion fixed in accordance with s79 (2) of the Act rather than the appropriateness of the amount arrived at by applying the formula. In my opinion the proportion fixed at fifteen per cent was so low as to demonstrate error. I agree with the reasons of the presiding Judge and with his conclusion that the proportion that was appropriate in the circumstances was twenty-five per cent. Handley JA: The orders of the Court will be:- (1) Appeal allowed. (2) Set aside the judgment of the trial Judge except as to liability. (3) Substitute with effect from 9 November 1993 judgment for $75,913.95. (4) The respondent is to pay the appellant's costs of the appeal and is to have a certificate under the Suitors Fund Act. 4 UNREPORTED JUDGMENTS (5) The respondent is to pay the appellant's costs of the proceedings in the District Court. COUNSEL: 5 Appellant: J CRUMPTON QC/S FONTI Respondent: K PIERCE SOLICITORS: 10 Appellant: PEACOCK DICKENS and PRICE Respondent: STEWART CUDDY and MOCKLER