BAKER v THE NOMINAL DEFENDANT SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL GLEESON CJ and BEAZLEY JA 16 May 1996 [1996] NSWCA 38 DAMAGES — QUANTUM APPEAL An award of damages for personal injuries was increased from $64,690.15 to $86,690.15 — No question of principle involved. ORDERS 1 Appeal allowed with costs. 2 In lieu of verdict at first instance, verdict for appellant for $86,690.15. Gleeson CJ This is an appeal from a decision of her Honour Judge Sidis given in the District Court in June 1995. The appellant, Mrs Baker, had sued for damages for personal injuries suffered in a motor vehicle accident which occurred on 24 January 1994. Liability was admitted and the matter came before Sidis DCJ for the purpose of assessment of damages. The appellant was aged forty-four at the date of the accident. She was working in a nursing home in the kitchen and laundry. She left school in 1965 after completing third form and her work history shows that over the years between 1965 and 1994 she had a variety of forms of unskilled employment. Her employment with the nursing home was terminated some time after the accident and she had not returned to work since. The appellant was hospitalised for about eleven days following the accident. When she was admitted to the hospital she was diagnosed as suffering from a fractured sternum, internal abdominal injuries, cuts on her left leg and extensive bruising. The major complaint concerning ongoing disability was a complaint relating to continuing pain in the back, shoulders and neck. X-rays and other radiological evidence did not indicate any damage to the spine and the diagnosis was soft tissue injury to the neck. In a report dated 28 July 1994 Dr Conrad expressed the following opinion: "This lady was involved in an accident as detailed under History. As a result she sustained a whiplash injury of the neck, a fractured sternum, bruising of her ribs and haematoma of the right side of her abdominal wall which was subsequently drained. She has been left with pain in her neck and chest and over the sternum. At this stage she needs conservative treatment and is fit for light work involving heavy lifting, repetitive bending, standing or sitting in the one position with her neck bent for any length of time. She would be able to do light part time clerical work. She should only start off with doing 20 hours per week and not doing any heavy lifting, repetitive bending or using heavy industrial vacuum cleaners or polishers. She would be able to work as a domestic within those parameters. Eventually she may be able to slowly increase her work capabilities but should not do more than 20 hours per week in the first instance. She has a 25% impairment of her neck." 2 UNREPORTED JUDGMENTS Dr Walsh in a report dated May 18 1994 recorded that soft tissue injury of the kind here involved gradually settles over many months or perhaps even years and that he had explained to the patient and reassured her that she could expect full recovery. Dr Sietsma says that he had advised her that she could never return to heavy work such as polishing. Dr Memon said: "In my opinion, Mrs Baker's neck pain is due to severe muscle strain which extends from the upper para cervical muscles down to the dorsal spine and scapular muscle....It would appear that these radiological changes occurred during the last 12 months and could be contributing to her symptoms. Prognosis remains uncertain and she is unfit to work at this stage. Her pain would probably increase after carrying out domestic duties." That report was dated 7 June 1995 and was given a week before the trial. The appellant gave evidence at 25, and following, of the appeal book, as to her symptoms at the date of the trial. It is unnecessary for the purpose of this judgment to repeat that evidence in detail. Sidis DCJ summarised her conclusions as follows: "1. Mrs Baker has suffered significant injury. Her residual disabilities are related to musculo ligatmentous injury to the cervical and thoracic spine. In my experience, injuries of these types, and this is supported by the medical evidence, are likely to resolve over a period of time and should be by now coming to the end of their serious stage. There may be some episodic instances in Mrs Baker's ongoing life which will require future treatment, but not of a chronic nature. 2. Mrs Baker is unable to return to her pre-accident work. But whilst her earning capacity has diminished, it has not been destroyed. I propose a cushion to compensate her for the difficulties which she will encounter in securing suitable alternative employment. 3. Lam satisfied that the Greyhound Racing Control Board licence was secured for greyhound breeding activities and not for training purposes. 4. I am satisfied that Mrs Baker is significantly impaired for the purposes of s79(1) of the Motor Accident Act." Counsel for the appellant has pointed out in relation to paral of those findings that they appear to involve an acceptance that at the time of the judgment the appellant's injuries had not yet come to the end of their serious stage. Her Honour says "They should be by now coming to the end of their serious stage". Her Honour, pursuant to s79(1) of the Motor Accident Act 1988 assessed as the relevant proportion of the maximum amount that might be awarded in respect of the impairment of the appellant's ability to lead a normal life, a figure of 18%. This is challenged and counsel for the appellant submits that an appropriate figure would have been 25%. In my view, no error has been shown in this aspect of her Honour's judgment. Nobody suggests that the figure of 25% referred to in the report of Dr Conrad translates automatically into a corresponding figure for the purposes of s79 of the Motor Accidents Act. In my view the figure of 18% selected by her Honour was within the area in which discretionary judgment is reasonably available to her. However, a stronger challenge has been mounted to the reasoning and conclusion of her Honour in relation to economic loss. Her Honour's conclusion in this regard was as follows: URJ BAKER v THE NOMINAL DEFENDANT (Gleeson CJ) 3 "2. For past economic loss which has been allowed from 24 January 1994 to 31 July 1994 being the date when Dr Conrad suggested she was able to return to light work at the rate of $258.91 per week a sum total of $6990.57. 3. Acushion will be allowed at the rate of $250.91 per week for two years from 31 July 1994 to 31 July 1996 and this has been rounded out at $27,000. There is a challenge as to what appears in para3. There is no challenge as to what appears in para2. It will be observed, that her Honour took a slightly unorthodox approach to the matter which she described as "the cushion". Normally, damages in relation to economic loss are awarded on a basis that involves a distinction between loss of earnings to the date of the trial and diminution in future income earning capacity following the trial. To an extent, her Honour has elided these two concepts. Nevertheless, that does not of itself indicate that this is a case for appellate intervention. However, as counsel for the appellant has submitted, when one bears in mind the medical information which was before her Honour and the evidence of the doctors and of the appellant herself as to the symptoms she was suffering up to and including the time of the trial, the allowance in respect of diminution of future income earning capacity on the basis of a cushion in respect of ta period that ended only about a year after the trial appears to be inadequate. In my view, this aspect of the appellant's challenge to her Honour's decision has been made good. Counsel has criticised her Honour's reference to her own personal experience in relation to the time which injuries of this type take to resolve but in fairness to her Honour it should be pointed out that she receives a measure of support from the view expressed by Dr Walsh in May 1994. At the same time, it should be remembered that Dr Walsh expressed that view only a few months after the appellant's accident and what should have been far more significant to her Honour was the medical evidence up to the date of the accident including the opinion of Dr Memon and the appellant's own description of her symptoms to the extent to which they were accepted by the trial judge. Her Honour does not suggest in her reasons for judgment that she rejected this evidence. It is impossible to calculate with any degree of precision the amount that should be awarded to the appellant in respect of economic loss following 31 July 1994 and diminution in earning capacity following the date of the trial. Allowances of course have to be made for vicissitudes; in this respect the age of the appellant and her employment history and the nature of such skills as she had all have to be taken into account. The best that can be done, in my view, is for this Court to add to the amount awarded by her Honour under item no 3 set out above a lump sum which when added to the amount of $27,000 would fairly compensate the appellant in respect of economic loss from 31 July 1994 and diminution of future earning capacity. In my view, an appropriate amount in that respect would be $20,000. The other item in respect of which there has been a successful challenge to the reasoning of her Honour relates to her disallowance of physiotherapy expenses in an amount of $2,000. By that I mean that her Honour reduced the physiotherapy expenses that had been shown to have been incurred by an amount of $2,000. Her reasons for doing so were expressed simply by saying that the amount which had been incurred "appears to be somewhat excessive". 4 UNREPORTED JUDGMENTS The uncontradicted evidence of the appellant was that the physiotherapy treatment that she had been undertaking had been undertaken by her on the advice and recommendation of her doctor. I see no justification for disallowing any part of those expenses. Accordingly, I would propose that the amount of verdict should be increased by $22,000. The orders that I would propose would be: 1. That the appeal should be allowed. 2. In lieu of the verdict for the appellant given below there should be a verdict for the appellant of $86,690.15. 3. Subject to any submission that counsel wish to put to us I would propose that the respondent should pay the appellant's costs of the appeal. Beazley JA I agree. The order of course is I propose the respondent should have a certificate under the Suitors Fund if and to the extent the respondent is entitled to such a certificate. 1. That the appeal should be allowed. 2. In lieu of the verdict for the appellant given below there should be a verdict for the appellant of $86,690.15. 3. Subject to any submission that counsel wish to put to us I would propose that the respondent should pay the appellant's costs of the appeal.