LAYT v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL HANDLEY JA, SHELLER JA and COLE JA 18 June 1996 [1996] NSWCA 317 MOTOR VEHICLE ACCIDENT — liability — challenge to finding — apportionment. MOTOR VEHICLE ACCIDENT — damages — general damages — future economic loss. On 3 April 1985 the plaintiff was injured in a motor vehicle accident. The trial judge found that the defendant, coming from the opposite direction, had turned to the right in front of her but that she had indicated an intention to turn right herself which would have made the defendant's actions safe. As a result he found contributory negligence by the plaintiff at 30%. The plaintiff suffered soft tissue injuries resulting in back pain and had to take time off work and undergo physiotherapy. The trial judge found, on the basis of CAT scans, that the more serious injuries to her back were the result of a fall in July 1986. He assessed her damages at $13,460.56 which included $10,000 for general damages. The plaintiff appealed against the findings that she was indicating a turn to the right, and was guilty of contributory negligence and challenged the sufficiency of the general damages, and the failure to award a cushion for future economic loss. HELD, dismissing the appeal: (1) No incontrovertible facts existed to challenge the finding that the appellant had indicated an intention to turn right nor was it glaringly improbable; (2) Apportionment involves the evaluation and comparison of various factors and this apportionment was not outside the discretionary range of the trial judge; (3) On the findings of the judge only the modest award for general damages was called for, and there was no occasion for an award of future economic loss. Handley JA. This is a plaintiff's appeal from findings on liability and damages by Downs QC DCJ in the Liverpool District Court. The case arises out of a motor vehicle accident which occurred on 3 April 1985. The plaintiff was driving to work at the Liverpool Hospital, driving east in Elizabeth Drive, and was approaching the intersection of that road with George Street. Mr Bartlett, the driver of the other vehicle coming in the opposite direction, turned to the right in front of the plaintiff and there was a collision. The trial judge found that the plaintiff's blinker was on indicating that she intended to turn right into George Street. As a result the defendant's insured driver, Mr Bartlett, thought it was safe for him to make a right hand turn across the line of traffic in Elizabeth Drive into George Street in the other direction. Mr Bell for the appellant, attempted to challenge the trial judge's finding that the plaintiffs blinker was on indicating her intention to make a right hand turn into George Street, but this attempt was doomed to failure. No incontrovertible facts exist to provide a basis for any such challenge and it cannot be said that the finding was glaringly improbable. The second challenge was to the trial judge's apportionment of responsibility. He considered that the greater responsibility was with the defendant's insured driver but thought that the plaintiff had to accept some responsibility and he 2 UNREPORTED JUDGMENTS apportioned liability seventy percent to the defendant, thirty percent to the plaintiff. Mr Bell challenged this apportionment, but in my opinion this challenge had no prospects of success. Apportionment is very much a matter for the discretion of the trial judge within broad limits as it involves the evaluation and comparative weighing of a number of factors. Appellate courts have indicated throughout the history of this legislation the need for restraint in reviewing the discretionary decisions of trial judges in such cases. Ihave been totally unpersuaded that the apportionment in this case was outside the range of the trial judges" discretion. I would therefore dismiss the appeal on the issues of liability. The trial judge assessed the plaintiff's damages prior to the reduction for contributory negligence at $13,460.56. The appellant challenges the award at $10,000 for general damages and the absence of any award by way of a cushion for future economic loss. The judge found that the plaintiff had sustained a soft tissue injury to her neck and back. She did not go to work immediately after the accident but told the police at the scene that she had not been injured. Later the same day she reported to the surgery of Dr Edelsten at Hammondville who diagnosed what he described as 'a trivial soft tissue injury'. It is clear however that the injury was more than trivial because of the subsequent treatment the plaintiff had and the time she was away from work. Following her visit to Dr Edelsten the plaintiff saw a partner in the practice she consulted for general practitioner services. She was off work for approximately six weeks and had physiotherapy treatment. Her neck improved during this period but she had residual symptoms in her back. She saw Dr Wright, another partner, in the practice in June 1985, some two months after the accident, and at that stage she was only suffering from neurodermatitis. Dr Wright considered that she had no long term disabilities and her prognosis for recovery, that is I would understand from the neurodermatitis, were good. The plaintiff saw a third member of the partnership, Dr Vote, on 5 September and he thought that she had suffered a minor injury to her back in the motor vehicle accident. Finally she saw Dr Stevenson, an orthopaedic surgeon, who found that her problems were consistent with soft tissue ligamentous strains following the accident. He considered that her symptoms would gradually settle down. She was certified fit for work on 17 October. Early the following year on 10 February 1986, Dr Stevenson reported that a CAT scan of the plaintiffs lumbar spine demonstrated the absence of any abnormalities which could be thought to be caused by trauma but some degenerative changes were noticed. The plaintiff continued to perform her normal work until July 1986 when she had a fall at work. Following this fall she had a short period off work and she experienced back pain, but after that short absence was able to go back to work and she continued to perform normal duties until January 1990. However she did experience back pain which waxed and waned during this period. The judge found that following the performance of extra work in January 1990 her back pain became permanent. She was forced to undertake light duty work and her services were terminated by the hospital in November of that year. WAYT v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Handley JAB Significantly, in my view and in the view of the trial judge, a CAT scan of the plaintiff's back taken in December 1987 following the fall at work in July 1986, showed significant abnormalities at L3/4, L4/5, and L5/S1, and a further CAT scan taken on 13 July 1990 showed similar abnormalities. The trial judge concluded, on the basis of a comparison of the CAT scan of February 1986 with those taken after the fall at work, that the motor vehicleaccident was not responsible for the back pathology that was detectable in the later CAT scans. In my opinion those findings cannot be disturbed. On that basis the trial judge had to compensate the plaintiff for a ligamentous injury to her neck and lumbar spine where the neck symptoms resolved after six months and the back symptoms gradually got better with the assistance of physiotherapy and the passage of time. On these findings a modest award of general damages was called for and in my judgment there was no occasion to make any award for future economic loss. In my opinion the challenge to the judge's findings on damages also fails and I would propose that the appeal should be dismissed with costs. Sheller JA. I agree. Cole JA. I agree. Handley JA. The orders of the Court are appeal dismissed with costs. Orders accordingly. Counsel for the appellant: R S Bell Solicitors for the appellant: A S Valenti Counsel for the respondent: G J Bateman Solicitors for the respondent: Weitbe and Co