DAVIS v GIO; DAVIS v GIO SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MEAGHER and COLE JJA 23 March 1995 [1995] NSWCA 118 Damages — no question of principle. Cole JA Before the court are two appeals, one by Monica Margaret Davis and the other by Catherine Marie Davis. Both appeals are brought against the Government Insurance Office of New South Wales, that being the body responsible for the negligence of the driver of a vehicle which, on 21 June 1987, drove into the back of the vehicle being driven by Monica Davis. The collision was apparently significant, as the evidence discloses that the back of the vehicle being driven by Monica Davis was significantly stoved in. The two appellants brought actions for damages for the injury which they suffered in that collision. I shall deal, firstly, with the appeal of Monica Margaret Davis. The trial dealing with her claim was heard before Judge Downs on 29 July 1991. His Honour awarded her, by way of general damages, $2,000 and awarded past out-of-pocket expenses of $88. There was thus a verdict in her favour for $2,088. Damages are, of course, awarded as compensation for injury or loss suffered in consequence of being involved in a motor vehicle accident, not simply because one is involved in a motor vehicle accident. Accordingly it was necessary for the trial judge to determine the extent of any injuries or loss suffered by Monica Davis. After the accident she was taken by ambulance to Auburn District Hospital. She complained of pain in both thighs. On examination it was found that she had a full range of movement, that she had suffered no fracture and she was diagnosed as having muscle strain. She was allowed to go home. The following day, 22 June, she consulted Dr Chan complaining of pain in the region of her throat and neck such that she had some difficulty in swallowing. She also complained of pain in her thighs and that her cervical spine was tender. The doctor could find no neurological signs of injury. He had an x-ray of her cervical spine performed and the x-ray report showed that there was no evidence of injury to the bones, joints or the ligaments of the cervical spine. His conclusion was that she had suffered a soft tissue injury in the region of the neck. She was advised to wear a neck collar for a short time and to take some analgesics. She next saw Dr Chan some two weeks later on 6 July complaining of "tinges of pain" on the left side of her neck and arms. She complained of lower lumbar backache. The neck swelling sensation of which she had originally complained had cured and her neck movements were full. She did not see Dr Chan again until some eight months later on 1 March 1988. She complained then of occasional headaches, stiffness of the neck and pain in the left side of the neck. No neurological signs were shown on examination and she had full neck movements. At the time of the accident Monica Davis was twenty-one years of age, and a student at St Patrick's Business College. She completed her study in 1988 and commenced employment in 1989. 2 UNREPORTED JUDGMENTS The reality is that as a consequence of the accident she saw Dr Chan on three occasions. She suffered only a minor muscle strain. She made no complaint beyond eight months after the accident. She suffered no economic loss as a consequence of the accident and so far as the evidence extends there was no basis for suggesting that in the future she would suffer any loss of earning capacity. In those circumstances it is my view that the amount of general damages awarded by his Honour of $2,000 is not appealably so low as to require this court to disturb it. In the appeal of Monica Margaret Davis I would accordingly propose that the appeal be dismissed with costs. In relation to the appeal of Catherine Maree Davis, who was also a passenger in the vehicle, and at the time was aged fifteen years, his Honour allowed $1,000 by way of general damages and $100 for past out-of-pocket expenses thus entering a verdict for $1,100. The appellant Catherine Davis was also taken to the Auburn District Hospital but she was not examined at that hospital, making no complaint. In evidence she said that she just wanted to get away from hospitals as she did not like them and she thought others were more seriously injured than she was. She saw Dr Chan the following day, complaining of generalised headache, pain and sensation of swelling in the whole of her neck and shoulders. She had tender neck muscles and there was some restriction in her neck movements. She also was advised to wear a neck brace until the initial pain subsided. She saw Dr Chan with her sister on 6 July for a check-up. She complained then of aching arms and shoulders and stiffness of the neck in the region of her low back. Dr Chan advised her to rest and to undertake physiotherapy if the symptoms of pain persisted. She said that they did and in consequence she attended, rather than upon a physiotherapist, upon a chiropractor. She saw the chiropractor on six occasions during August, twice in September, once in October and twice in November. His Honour disallowed those chiropractor's expenses apparently on the basis that the chiropractor had been recommended by the appellant's father. That is not a basis for rejecting those claims. It can only be assumed that Catherine Davis, then aged fifteen, and otherwise a healthy schoolgirl, went to the chiropractor because she had the need to, to try to seek relief from such pain which she had in consequence of the accident. There is no other sensible basis for her complaint of pain at that time or for her attending the chiropractor. It follows, in my view, that his Honour was wrong to disallow the chiropractor's expenses. In 1987 when the accident occurred Catherine Davis was in Year 10 and studying at school. She did not see Dr Chan again until August 1988. Whilst she was in Year 11 she said she had continuing symptoms in her neck and complained of some headaches and stiffness in her back and neck. Nonetheless throughout 1988 whilst she was in Year 11 she did not seek any substantive medical attention and did not have any chiropractic attention. In 1989 she was in Year 12. She had throughout 1988 and the first part of 1989 engaged in part-time employment with Target loading shelves and working at the check-out. On 20 May she ceased that employment. In evidence she said that she did so because that work produced some pain which inhibited her study routine. The trial judge found as a fact that the reason she ceased was so that she could devote more time to study. That was a finding open to the trial judge and there is no reason for this court to disturb it. URJ DAVIS v GIO; DAVIS v GIO (Meagher JA) 3 In June 1989 she again saw Dr Chan, complaining of pain to both sides of her neck and some headaches. She was given some anti-inflammatory drugs and advised to do some exercises for her neck. She completed the Higher School Certificate in 1989 and in 1990 commenced a three-year primary school teacher's training course. In March 1990 she resumed part-time work at Target. She again saw Dr Chan in April 1990 complaining of continual neck pain and in consequence was referred by Dr Chan to Dr Clarke, an orthopaedic surgeon. He found that she had some tenderness on the left side of the neck and in the lower lumbar sacral and coccyx region. She saw Dr Taylor for medico-legal purposes in September 1990. His view was that she had suffered a quite severe muscular and ligamentous strain. Apart from a reduction in respect of a visit to Dr Chan in August 1990 which had nothing to do with her claim for damages arising from the motor vehicle accident, there is no reason why she should not have been allowed her prior out-of-pocket expenses for visiting Dr Clarke, seeing Dr Chan, having an x-ray taken in June 1987 or for the chiropractic attendance upon Mr Keenan. In the result she was entitled to be compensated for past out-of-pocket expenses in the sum of $545.40. His Honour was in error in not allowing that sum. It is apparent from his Honour's reasons that in awarding $1,000 for general damages his Honour took the view that she suffered the most minor of injuries. It is apparent that his Honour did not take into account both the reasonableness of and necessity for her seeking pain relief by attending upon a chiropractor during the balance of that year. There is some evidence that she continues to have some neck pain at least up until the date of trial in July 1991, although her medical attendances were intermittent. She has suffered no economic loss. It was submitted that between May 1989 and March 1990 when she ceased her part-time work with Target she should be awarded a sum for economic loss because that cessation was due to the consequences of the accident. For reasons I have previously given his Honour's finding that it was due to her study requirements is not to be disturbed and accordingly she is not entitled to any past economic loss. There is no evidence upon which any finding that she may suffer a future loss of any earning capacity could be sustained. In those circumstances in my view the appeal of Catherine Davis must be upheld. She is entitled to have a verdict to include $545.40 for past out-of-pocket expenses. She is also entitled to have a reassessment of her general damages. This court is, in my opinion, in an adequate position to exercise the powers conferred by the Supreme Court Act to reassess those damages. In my view Catherine Davis should be awarded by way of general damages the sum of $4,000 and thus she should have a verdict in the sum of $4,545.40. In the circumstances, in the appeal of Catherine Davis, the order that I would propose would be that the appeal by upheld, the findings and judgment of the District Court of 30 July 1991 be set aside and that in lieu thereof there be entered a verdict in the sum of $4,545.40. Subject to any submission which counsel for the respondent may put, it is my view that in this case it would also be appropriate to award Catherine Maree Davis the costs of this appeal and the costs of the trial below. Meagher JA I agree with the orders proposed by Mr Justice Cole in both matters and would add only this, with his Honour's concurrence, that in the case of Catherine Maree Davis interest is to run from 30 July 1991. 4 UNREPORTED JUDGMENTS In the appeal of Monica Margaret Davis, the appeal is dismissed with costs. In the appeal of Catherine Davis, the appeal is upheld, the findings and judgment of the District Court of 30 July 1991 are set aside and in lieu thereof there is entered a verdict in the sum of $4,545.40. 5 Subject to any submission which counsel for the respondent may put, it is appropriate to award Catherine Maree Davis the costs of this appeal and the costs of the trial below. Counsel for the Appellant: TD Kelly (sol) 10 Instructed by: TD Kelly Counsel for the Respondent: J Ringrose Instructed by: GM Meadows