MORGAN v WEERD SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL PRIESTLEY JA, HANDLEY JA and CoLe JA 17 May 1996 [1996] NSWCA 369 MOTOR VEHICLE ACCIDENT — damages — non-economic and future economic loss — no question of principle. The respondent, then almost 27, suffered a motor vehicle accident on 31 October 1993 and was awarded $105,766.23 by the trial judge. Her evidence was accepted and was supported by medical evidence of a soft tissue injury of the neck and a compression fracture of one or two vertebrae with a prognosis of further deterioration. The appellant challenged as disproportionately high the award of $69,000 for non-economic loss and the $22,500 cushion awarded for future economic loss. HELD: dismissing the appeal: (1) Disproportion in this case between the awards off non-economic and economic loss did not constitute error; (2) Medical evidence supported both awards and there was no basis for interfering with the trial judge's decision. Handley JA. This is the defendant's appeal from the assessment by Armitage DCJ of the plaintiffs damages arising from a motor vehicle accident she suffered on 31 October 1993, which, needless to say, fell to be assessed in accordance with the Motor Accidents Act. The Judge found the verdict in favour of the plaintiff in the sum of $105,766.23. The appellant has challenged the components for non-economic loss and future economic loss. The trial Judge assessed the plaintiff as being 30% of a worse possible case and this resulted in an award of $69,000. He awarded the plaintiff for future economic loss a cushion of $22,500. The plaintiff was almost 27 at the date of the accident and almost 29 at the date of the trial. The Judge found that she would probably haveworked to age 60 and may have had time off from work with marriage and children. He broadly accepted the plaintiff's evidence, and rejected submissions that she had grossly exaggerated her condition and was malingering, although he did say that she endeavoured to make the very most of her complaints, past and present. The plaintiff complained of headaches, neck ache and back pain which she said she experienced every day. This was not a case in which the plaintiff's complaints of pain depended solely on the evidence of the plaintiff. The trial Judge also accepted the evidence given by Drs Smythe and Hopcroft. Dr Smythe said that the plaintiff had suffered a soft tissue injury of her neck and a compression fracture of the vertebra at T8. He assessed her whole person impairment at 29% and explained in his reports and oral evidence how he arrived at that figure. He thought that her prognosis was not good and that it was possible that her condition would deteriorate as she got older. Dr Hopcroft said that she was 'quite likely to have degenerative changes' develop in her mid-thoracic joints and he thought she had wedge compression fractures to T8 and T9. He thought these degenerative changes may affect her employability. He also considered that she was likely to develop osteo-arthritis in 2 UNREPORTED JUDGMENTS the long term, basing this opinion on an MRI scan conducted on 8 June 1995, shortly before the trial, which indicated adverse changes at C3/4, C4/5 and C5/6 in the plaintiff's cervical spine. The Judge noted that the plaintiff had been receiving continuing physiotherapy and osteopathy and considered that she should continue to receive the help that these treatments gave her. Given the Judge's substantial acceptance of the plaintiff's evidence and the evidence of Drs Hopcroft and Smythe, and having regard to the plaintiffs age at the date of accident, I see no basis for interfering with his Honour's assessment of her incapacity at 30%. Mr Rofe QC, who appeared for the appellant, and whose submissions were concise and helpful as usual, relied upon the fact that the award for non-economic loss was a disproportionately high component of the total verdict as indicative of some error in that award. I am not persuaded that this is an appropriate method of reasoning, particularly in view of the conclusions of Dr Smythe. The remaining challenge related to the Judge's award for future economic loss. The period for which this cushion was awarded was something between 31 and 32 years. On that basis, bearing in mind the doubtful medical prognosis stated by Drs Hopcroft and Smythe and, in particular, the view of Dr Hopcroft that the plaintiff was quite likely to have degenerative change in her mid-thoracic joints and to develop osteo-arthritic changes in her neck, this was a modest award and not one with which this Court can or should interfere. I would propose, therefore, that the appeal should be dismissed with costs. Priestley JA. I agree. Cole JA. I also agree. Priestley JA. The judgment of the Court is that the appeal be dismissed with costs. Orders accordingly. Counsel for the appellant: D F Rofe QC Solicitors for the appellant: Parish Patience: Sydney Counsel for the respondent: S M Hamman Solicitors for the respondent: Stanger and Clarke: Newcastle