Maynard v Dabinett [1999] NSWCA 295

New South Wales Court of Appeal CITATION : Maynard v Dabinett [1999] NSWCA 295 FILE NUMBER(S) : CA 40935/98 HEARING DATE(S) : 30 July 1999 JUDGMENT DATE : 1 September 1999

PARTIES : L Maynard - Appellant C E Dabinett - Respondent JUDGMENT OF : Stein JA at 1; Giles JA at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC 8856/97 LOWER COURT JUDICIAL OFFICER : Hughes ADCJ

COUNSEL : B J Gross QC & R H Grace - Appellant A C Bridge SC - Respondent SOLICITORS : Booth Mather Blackmore, Edgecliff - Appellant McMahons, Sydney - Respondent CATCHWORDS : ASSESSMENT OF DAMAGES - whether reasons sufficient - need not be lengthy or elaborate, or deal with ever matter raised in the proceedings - but had to show attention given to critical evidence and basis of critical findings and explain fundamental reasons for conclusion - did not. DECISION : Appeal allowed with costs, the judgment for $318,776.00 set aside, and the proceedings remitted to the District Court for rehearing limited to assessment of damages, and the respondent to have a certificate under the Suitors Fund Act if qualified. The order made below for the costs of the trial should stand.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40935/98 DC 8856/96

STEIN JA GILES JA

Wednesday 1 September 1999

Leonie MAYNARD v Colin Ernest DABINETT JUDGMENT 1 STEIN JA: I agree with Giles JA. 2 GILES JA: The appellant was injured on 3 December 1994 when struck by a car driven by the respondent. She alleged that the respondent was negligent. The respondent denied negligence and alleged contributory negligence. The appellant succeeded on both of those issues. 3 Extensive injuries and disabilities were particularised, and this appeal is concerned with the findings as to the appellant's injuries and disabilities and the assessment of her damages. 4 The injuries were particularised in 13 paragraphs - "(a) Shock; (b) Injury to head; (c) Injury to nose; (d) Injury to neck; (e) Injury to face; (f) Bruising to eyes; (g) Injury to right elbow; (h) Injuries to coccyx; (i) Multiple fractures to the left leg and left knee; (j) Bruising and contusions to the right leg; (k) General bruising and abrasions; (l) Injury to right knee; (m) Loss of consciousness." 5 The disabilities were particularised in 85 paragraphs occupying four pages of typing. They took up a broad notion of disability. Some were cosmetic, for example, lack of hair regrowth in the areas of sutures on the head and scarring. Many were physical, involving one or more of restriction of movement, weakness, pain, or disturbed sensation in a range of parts of the body. They included initial blurred vision; feeling of a pressure band around the head; impairment of the senses of smell and taste; "hot stabbing sensation through each ear"; neck pain, spasms, stiffness and weakness; tightness in the neck and shoulders; pain and restriction in movement in both shoulders, the right elbow, and left hand; weakness in the left hand; "aggravation of wrist symptoms secondary to use of crutches" and pins and needles and numbness in both hands and pain on extremes of wrist movement; pain and restriction in movement in the spine; pain or stiffness in the sacro-iliac joints and pain, numbness and restriction in movement in the left hip; extensive sequelae to the left leg fractures involving a grating sensation, locking, and difficulty in walking affecting both the knee and the foot; and pain, locking and restriction in movement in the right knee. Some were cognitive or psychological, for example, depression, irritability, severe mood swings, impaired memory and concentration, difficulty sleeping, loss of confidence, and self consciousness in crowds. 6 The particulars of disabilities included reference to arthroscopies in both knees, impairment of balance, difficulty running, falling as a result of the disabilities, impairment of social, recreational and sporting activities and difficulty in carrying out household activities, and impairment of sexual relationship. It was said that the disabilities had required that the appellant and her husband move from their existing house to a house more suitable for the appellant's condition. 7 According to the particulars, past out-of-pocket expenses had been met by the workers' compensation insurer of the appellant's employer. The appellant claimed amounts for future attendances upon a general practitioner and an orthopaedic surgeon, for physiotherapy, and for possible operative treatment (especially a total knee replacement). She claimed an amount for future medication. 8 Economic loss was particularised on the basis that, apart from a few days trial in mid-1995, the appellant was unable to continue in her employment as a sales assistant working four days a week. She was aged 50 at the date of the accident, and claimed future economic loss based on her wages as a sales assistant plus superannuation and long service leave until age 65. She also claimed damages for the provision of home care services from mid-1995 and continuing on the basis of 17 hours assistance per week. 9 The trial took place over three days before Hughes ADCJ. In his Honour's reasons he observed that there was "no real contest" that the respondent was negligent, but that there was a contest as to contributory negligence. He also said, "There is an extensive argument as to the seriousness of [the appellant's] injuries and to whether or not the paramedical treatment has [sic] received is justified and the quantum of past and future costs." 10 A measure of the latter argument is that his Honour was favoured with 61 medical reports from 18 different doctors and 17 reports from 6 different other health or occupational professionals, over 200 pages of reports in all. One only of the doctors or other professionals whose reports were tendered, Dr Jill Middleton, gave oral evidence and was cross-examined. The other witnesses were the appellant, her husband, and a police officer who had attended the accident. Most of the time was spent on the appellant's evidence. Her evidence in chief occupies nearly 30 pages of transcript, her cross-examination 54 pages. 11 The trial concluded on 21 September 1998. His Honour gave judgment on 29 October 1998. He gave a verdict for the appellant and judgment for $318,776.00, and ordered that the respondent pay the appellant's costs. According to his reasons the judgment was made up of - Non-economic loss $77,700 Past economic loss $58,200 Future economic loss $46,138 Loss of superannuation $10,000 Fox v Wood $6,818 Past out-of-pocket expenses $104,920 Future medical expenses $15,000 Total $318,776