CAMPBELL v OLIVER SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL SHELLER JA, COLE JA and Simos AJA 29 August, 11 September 1996 [1996] NSWCA 89 Motor Vehicle Accidents — Plaintiff Injured in Two Separate Motor Vehicle Accidents — Claim for Damages Resulting from First Accident Settled — Damages Awarded in Claim for Damages Resulting from Second Accident Solely Attributable to Exacerbation of Injuries Sustained in First Accident Caused by Injuries Sustained in Second Accident. Sheller JA. I agree with the reasons for judgment of Cole JA and Simos AJA and the orders proposed by Cole JA.. Cole JA. On 28 February 1996 Herron DCJ awarded the respondent in respect of injuries suffered in an accident on 23 August 1993 the following sums: 1. Domestic Assistance $ 3,120.00 2. Past wage loss (a) 20 May 1994-16 March 1995 $ 3,075.00 (b) 17 March 1995-28 February 1996 $19,345.00 3. Future loss of earning capacity $21,000.00 4. Damages for non-economic loss $32,200.00 5. Out-of-pocket expenses $10,650.06 TOTAL: $89,400.06 Judgment was entered in the sum of $89,400. commencement of the proceedings the action in respect of the earlier accident was settled. As Herron DCJ recorded, the respondent presented her case in respect of the second accident on the basis that 'the plaintiff's disabilities of which she complains really, in essence, are a result of the accident on 23 August 1993, aggravating the pre-existing condition which the plaintiff had and which aggravation really has not ceased'. It is contrary to any fair reading of the judgment to suggest, as the appellant did, that his Honour did not understand his task as being the assessment of damages flowing from the second accident, or that his Honour did not recognise that in assessing the plaintiff's claim it was necessary to distil the disabilities flowing from the second accident from those caused by the first. Herron DCJ found that after the first accident the respondent had returned to work after one month, and that her physical injuries caused to her neck and hip in the first accident had largely resolved immediately prior to the second accident. Further, his Honour found that the respondent suffered psychological injury in the first accident which continued to exist but which had abated in extent prior to the second accident. He found that, as a result of the second accident, she suffered a worsening condition to her hip and neck which affected her employment capacity. He accepted that, psychologically, she had not 2 UNREPORTED JUDGMENTS recovered fully from the first accident and 'I believe that her accident in 1993 exacerbated her previous condition'. That was the view of Mr Salia, a consultant psychologist accepted by Herron DCJ. As his Honour made clear: It seems to me that the second accident indeed exacerbated her psychiatric or psychological condition which had arisen originally as a result of the happening of the first accident.""'Regarding future loss of income earning capacity, his Honour held that, absent the second accident the respondent 'certainly would have worked full time for at least ten years' which would have taken her to the age of 60. There was evidence to support that finding and no basis has been shown for it being disturbed. At the trial there was no dispute regarding the sum of $10,650 claimed for out-of-pocket expenses?. It follows that the appeal should be dismissed, the cross-appeal upheld, the judgment in favour of the respondent in the sum of $89,400 set aside, and in lieu thereof judgment entered in the sum of $96,126. The appellant should pay the respondent's costs of the appeal and the cross-appeal. Simos AJA. The Proceedings. This is an appeal from the judgment of Herron DCJ given in the District Court at Gosford on 28 February 1996. In that Court the respondent sued the appellants for injuries sustained by her in a motor vehicle accident which occurred on 23 August 1993. On that day the respondent was the driver of a van in Henry Parry Drive when the appellants" vehicle collided with the rear of the respondent's vehicle in circumstances involving negligence on the part of the appellants. Liability was admitted on behalf of the appellants and the hearingher neck and it would appear, also to her hip which might have involved the hip joint.' The Second Accident In respect of the second accident, which occurred on 23 August 1993, and which was the subject of the proceedings before the learned trial judge, his Honour recorded that the respondent claimed that this (second accident) caused her problems 'so far as her neck and hip are concerned' and that there was also a claim that the respondent suffered psychological or psychiatric injury, being an exacerbation of her pre-existing psychological or psychiatric condition which had resulted from the injuries which she had received in the earlier motor vehicle accident (on 1 July 1992). The Respondent's (Plaintiff's) Claim It appears that the respondent's claim for damages in respect of the first accident, as well as her claim for damages in respect of the second accident had been listed before his Honour to be heard together, but the transcript records that at the commencement of the hearing before his Honour he was informed that the respondent's claim for damages in respect of the first accident had been 'resolved'. In this connection his Honour stated in his judgment in the proceedings in relation to the second accident that 'the case really is that the whole of the plaintiff's disabilities of which she complains really, in respondent, then aged 51, would have remained in full time work, probably as a van driver until about 60 or thereabouts, maybe more. His Honour found that immediately before the second accident, although the respondent was having some problems with her neck and her hip she was able to carry on and that her hip 'was not too bad' and that there was only 'a little bit' of pain in her neck for which she was still having physiotherapy. 2. Appeal Book, p.63J. URJ CAMPBELL v OLIVER (Simos AJA) 3 Significantly, his Honour later held that 'had she (the respondent) not been injured in the second accident she certainly would have worked full time for at least ten years ... '. This was the critical finding of his Honour for the purposes of this appeal because it formed the basis for his Honour's view that the respondent's damages as claimed were solely the result of the second accident (see later). The Findings of the Trial Judge As To the Second Accident Having made findings as to the condition of the respondent immediately before the second accident, his Honour then dealt with the condition of the respondent having regard to the injuries sustained by her in the second accident. He accepted that the respondent was able to see the terrified look on the appellants" passenger's face immediately before the time of impact and thought of the 'paraplegic girl' who had been made paraplegic inaccident, but had problems with her neck especially so far as her turning the neck to the right was concerned in traffic. She had constant pain in the neck while she was driving and these problems were far worse after the second accident than they had been prior to that time. His Honour found that although the respondent had pain in the neck immediately prior to the second accident it was not of great moment and was far worse after the second accident. The respondent's hip problem did not affect her driving but did affect her ability after the second accident to carry on a job as a courier and in particular in getting in and out of the van. In June 1994 she ceased being a driver and was employed in the office doing paper work and working with a computer because she could not cope with driving any longer and driving left her with a lot of pain mostly in the afternoon after finishing work. The respondent's neck was worse than the hip but when she did office work she found that she was unable to do a full day's work again because of pain particularly in the neck and in the hip. In November 1994 it was arranged with her employer that she work but three hours a day and that continued for some time but that was not satisfactory to her employer and she was dismissed from her employment on 17 March 1995. Thereafter the respondent was not employed up to and including the dates of hearing. from Dr Barrett in which he said that the respondent seemed to have reached a plateau in her response to treatment and that one could only hope that with the passage of time her disabilities, which were both physical and psychological, would improve and her symptoms subside. The doctor added that as far as her fitness for work was concerned she was unable to do the kind of work she was doing at Booths Motors in the office there and that this unfitness might well continue indefinitely. In relation to the respondent's psychological and/or psychiatric problems his Honour found that her psychological problem certainly was exacerbated by the second accident. His Honour quoted from a report of a consultant psychologist, Mr Salia, as follows: Her second motor vehicle accident appears to have had a much more serious impact on her than one might expect as the injuries were less serious over all. Immediately prior to the impact she saw the face of the young woman passenger in the vehicle behind her in her own rear view mirror and she interpreted it that this woman was terrified. She was unable to leave her own vehicle and said that her fear paralysed her. She could not stop crying and experienced a flood of emotion which brought back memories of her previous accident. 4 UNREPORTED JUDGMENTS After quoting this passage his Honour found that:She feels she could manage varied work provided it did not involve doing the same thing all day. She feels she could cope with half a day in the office and half a day on the road.' The doctor went on to observe that the respondent seemed both 'anxious and depressed', and went on to state that, as a result of the first accident, the respondent had injuries to her cervical spine and her right hip and that the second accident resulted in 'further aggravation of her neck injury.' His Honour went on to hold in effect that the respondent's post-traumatic stress disorder resulting from the first accident was reactivated by the second accident. Attribution by the Trial Judge of Responsibility for Injuries as Between the First and Second Accidents. His Honour's judgment then dealt, in effect, with the issue of attributability of the respondent's condition as between the first and second accident. In this connection his Honour referred to the report of Dr O' Malley who said that there was currently no physical disability but, as his Honour put it, 'nevertheless (Dr O'Malley) puts the, entering the realm of guesswork of course, suggests that her problems are 75% the result of the first accident and 25% the result of the second accident'. His Honour observed that he had difficulty in understanding what was being said by Dr O'Malley to theattributability for the respondent's damages as between the first and second accidents, as follows: I think that had she not been injured in the second accident she certainly would have worked full time for at least ten years, which would take her a little over sixty years of age I realise, but as I say I do not think that even at this stage the matter could be assessed upon the basis that she is totally incapacitated for work although ... I will allow a claim upon that basis up until the present time, but really I do that doing the best Ican in assessing her overall loss of income earning capacity both in the past and in the future, and in each case I am very much entering the realm of guesswork. Again, in my opinion, his Honour's use of the word 'guesswork' in this context, as in the earlier context, was not intended to be a literal description of what his Honour had decided, but was merely an indication that, in the nature of things, the question of attribution was of some difficulty. That finding was, in my opinion, equivalent to a finding that the respondent's continuing partial loss of future earning capacity was solely attributable to the second accident (see later). Submissions on Behalf of the Appellants. The principal submission made on behalf of the appellants was that his Honour's award of damages to the respondent in respect of the second accident should be set aside, upon the ground that his Honour failed to address the question of how the damages suffered by the respondent should be apportioned as between the first and second accidents. In this connection counsel for the appellants referred, inter alia, to a passage in his Honour's judgment in which his Honour was dealing with the respondent's future loss of income earning capacity. In that context his Honour considered whether or not he should continue into the future, 'at least for some time', an amount equivalent to the respondent's former earning capacity of $395 per week, on the basis that the respondent would have been totally incapacitated, 'at least for some time', into the future as from the date of hearing. Counsel submitted that this made it plain that his Honour was attributing the whole of the respondent's URJ CAMPBELL v OLIVER (Simos AJA) 5 loss of earning capacity to the second accident when, so it was submitted, it was plain that some of that loss of earning capacity had to be attributed to the first accident. It is plain that this submission must be rejected. In order for the appellants to succeed on this issue the Court would need to be satisfied that it was not open to the learned trial judge, on the evidence, to come to that conclusion. The fact is, however, that there was plainly evidence before his Honour upon the basis of which it was open to him to conclude that, had it not been for the second accident, the respondent would have worked full time for at least ten years, notwithstanding the effects of the first accident. Most importantly, that evidence included evidence of the fact already referred to, that the respondent did return to work on light duties as early as one month after the first accident, for eight to nine months, after which she returned to her full duties as the driver of a van, in circumstances in which the respondent had told his Honour that, immediately before the second accident, her hip was 'not too bad', and that, although she was still having physiotherapy for her neck, there was not much pain in the neck, although there was 'a little bit'. His Honour was plainly entitled to find in these circumstances that, had the respondent not been injured in the second accident, she would have worked full time for at least ten years. The fact that the respondent did return to work as early as one month after the first accident in the circumstances mentioned, also makes it plain, in mythat there were ongoing consequences resulting from the first accident, but was of the view that it was the exacerbation, as a result of the second accident, of the injuries sustained by her in the first accident which was productive of the economic loss and other damages which the respondent suffered as a result of the second accident. In my opinion, there was evidence, as referred to above, before his Honour, upon the basis of which he could so conclude, and no reason has been shown why this Court should disturb his Honour's findings. Throughout his Honour's judgment, his Honour made findings as to the effects upon the respondent of the injuries sustained by her in the first accident, which, in fact, were not such as to prevent her from resuming employment within one month thereafter. Throughout his judgment his Honour also referred to the effects upon the respondent of the injuries sustained by her in the second accident and, in particular, to the exacerbating effect of those injuries sustained by her in the second accident, upon the injuries sustained by her in the first accident. His Honour also made it plain throughout his judgment that he was limiting his consideration to the relevant effects of the second accident on the respondent, having been told, as stated earlier in his judgment, that that was how the respondent's case was being put and, of course, having previously been told at the outset of the hearing that theThe respondent's cross-appeal should, however, be upheld to the extent necessary to correct the arithmetical error in relation to the award of damages for loss of future income earning capacity. As set out in the reasons for judgment of Cole JA this requires that the existing verdict for $89,400 should be set aside and, in lieu thereof, judgment entered in the sum of $96,126. The cross-appellant's costs of the cross-appeal, which was opposed by the cross-respondents, should be paid by the cross-respondents. 1. Appeal dismissed. 2. Cross-Appeal Allowed. 3. Judgment in favour of the Respondent in the sum of $89,400 set aside, and in lieu thereof, judgment entered in the sum of $96,126. 6 UNREPORTED JUDGMENTS 4. Appellants to Pay the Respondent's Costs of the Appeal and the Cross-Appeal. Counsel for the appellants: BJ Gross: QC 5 Solicitors for the appellants: Thomas Laycock Counsel for the respondent: DA Wheelahan: QC Solicitors for the respondent: PJ Donnellan and Co 10 Counsel for the cross-appellant: DA Wheelahan: QC Solicitors for the cross-appellant: PJ Donnellan and Co Counsel for the cross-respondents: BJ Gross: QC 15 Solicitors for the cross-respondents: Thomas Laycock