New South Wales Court of Appeal CITATION : Bakker v Williamson [1999] NSWCA 284 FILE NUMBER(S) : CA 40834/97 HEARING DATE(S) : 19/05/99 JUDGMENT DATE : 12 August 1999 PARTIES : Jon Albert Bakker v Liana Beth Williamson JUDGMENT OF : Beazley JA at 1; Fitzgerald JA at 2 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 70189/96 LOWER COURT JUDICIAL OFFICER : Sinclair DCJ COUNSEL : K Kelleher (Appellant) A Fennell (Respondent) SOLICITORS : Sparke Helmore (Appellant) Brazel, Moore Daly (Respondent) CATCHWORDS : Motor vehicle accident; no point of principle. DECISION : Appeal dismissed with costs; Cross-appeal allowed. THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA40834/97 DC70189/96 BEAZLEY JA FITZGERALD JA Thursday, 12 August 1999 Jon Albert BAKKER v Liana Beth WILLIAMSON JUDGMENT 1 BEAZLEY JA: I agree with Fitzgerald JA. 2 FITZGERALD JA: This is a defendant's appeal (by leave of a differently constituted Court) from the costs order made by Sinclair DCJ in a personal injury action in which the plaintiff was awarded damages in the sum of $17,125, in circumstances where the appellant had served upon the respondent an offer of compromise in the sum of $17,500 on 3 June 1997, some 5 months before the hearing. 3 The respondent cross appeals seeking an increase in the damages she was awarded. 4 As the result of the defendant's appeal is dependent upon the outcome of the cross appeal, I will deal with the cross appeal first. 5 The respondent is a single mother with a young child. She was born on 22 August 1961, and, until she was injured, was in good health and working three days per week as a clerical officer/typist. 6 On 27 August 1995, shortly after her 34th birthday, the respondent was injured in a motor vehicle accident caused by the appellant. The respondent suffered a fractured sternum, a fractured left wrist (distal radius) with displacement, and a "whiplash" injury to her cervical spine. She was taken to Hornsby Hospital, where she was kept overnight. While she was in hospital, a closed reduction of her fractured wrist was carried out under general anaesthetic. 7 On about 17 September 1995, the respondent returned to work on reduced hours with her left arm still in a plaster cast. She continued to have pain in her neck and left wrist, and had difficulty driving, doing housework, or sitting for an extended period. 8 On 20 September 1995, the respondent consulted her general practitioner, Dr Knowles with neck pain. 9 The plaster was removed from the respondent's left wrist on 5 October 1995. 10 The respondent had physiotherapy treatment for her neck from 6 October 1995 for about three months. During that period, the respondent again consulted Dr Knowles with neck pain and was examined by Dr Black, on behalf of the appellant, in connection with this litigation. 11 The respondent visited another medical practitioner, Dr Roebuck, in connection with the litigation on 7 June 1996. 12 On 18 October 1996, the respondent again visited Dr Knowles with neck pain, which led to further physiotherapy. At that time, the respondent continued to have pain in her neck and left wrist, which was aggravated by work. 13 On 26 February 1997, the respondent was examined by another doctor for the appellant, Dr Walker. 14 On 7 April 1997, the respondent was retrenched, and she was still looking for work at the time of trial, 3 November 1997. 15 Meanwhile, the respondent had seen an orthopaedist, Dr Dixon, on Dr Knowles' referral, on 24 June 1997. 16 At the time of trial, the respondent had only minor tenderness to her sternum. Her problem with her sternum had largely resolved a few weeks after the accident but there continued to be some residual discomfort. 17 The respondent had more significant continuing pain and disability in her neck and left wrist. 18 According to the respondent, her continuing neck problems are the most troublesome for her. She said: "If I do any computer work or heavy gardening and craft work … anything when I have my head tilted over for long periods of time it seems to start aching." … I'd say 90, 90, 95% of each morning when I wake up [the neck's] sore and some days it gets better during the day, other days it stays sore. On a bad day I can get a headache through to the front of my head … so it varies from day to day but it is a nagging thing that always seems to be there. … I do on occasions have restless nights because of my neck. I am trying to avoid sleeping on my back at the moment because it tends to aggravate it more." 19 The respondent also said that her left wrist becomes sore with craft work, gardening, driving or spending a long time using a computer. 20 The District Court judge accepted the respondent as a "… truthful and reliable witness who does not overstate the extent of her injuries and the consequences thereof". 21 The respondent's principal complaints in her notice of appeal were that the trial judge erred in finding that her continuing disability in her neck or her wrist was no longer particularly significant, that her ability to lead a normal life was significantly impaired for only about a year after she was injured, and that "… there was no radiology or pathology to support a finding of permanent disability in either [her] neck or wrist". According to the respondent's notice of cross-appeal, the "… amount awarded for non-economic loss was inadequate so as to invite appellate intervention". 22 Although there are some problems associated with statements made by the trial judge in the course of his reasons, there was no evidentiary basis for a successful challenge by the respondent to his Honour's finding that the non-economic loss was "twelve per cent of a most severe case" within the meaning of s79 of the Motor accidents Act 1988. 23 The respondent's notice of cross-appeal did not challenge the amount awarded by the trial judge for loss of earning capacity, but both her written and oral submissions did so. It is necessary to look more closely at the problems in the trial judge's reasons again in this context. 24 His Honour said: "I add a cushion of six thousand dollars against the possibility and that is what we look at now in relation to the future, of some economic loss in the future should both of these soft tissues recur on her, such as if she started fulltime employment or a situation like that but the possibility of her suffering any significant economic loss as a result of the injuries suffered in this motor vehicle accident, are in my opinion quite low and that is why I have settled on the figure of six thousand dollars." 25 According to the respondent, the amount of $6000 "… seems so obviously inadequate as to invite appellate intervention. It is contended that a more realistic allowance for a cushion or buffer would be $10,000". 26 Shortly stated, the respondent's argument in favour of this part of the cross-appeal depended upon the premise that she has permanent neck and wrist pain and disabilities which will interfere with her "… sitting at a computer and using a keyboard", and "… any unskilled manual work".. It was pointed out that the respondent continued to seek work at the time of trial and gave evidence that once her child, who was aged 9 at the time of trial went to high school, she would be seeking full-time work. In summary: "If the [respondent], in the years to come, lost only one year's income at $285.81 per week after tax [which she had been earning], then applying the 5% tables represents more than $14,500." 27 The trial judge was plainly wrong to refer to a fractured left wrist as a soft tissue injury, and his dealing with the respondent's neck injury was unsatisfactory. 28 There are two principal difficulties. One is that, in the passage quoted above with respect to lost earning capacity, the trial judge speaks of the respondent's wrist and neck injury as though they had no currency but might "recur". That was contrary to her evidence, which he accepted, with medical evidence, including that of Dr Walker, whom his Honour preferred to Dr Roebuck, and with his finding that the respondent "…. has still got some residual disability, mainly in the neck and occasionally in her wrists …", although he did not "… regard her degree of continuing disability in the neck or the wrist to be particularly significant now". 29 The other principal problem is that, as stated, his Honour preferred Dr Walker to Dr Roebuck at one point but, at another point, said that they seemed "… to cancel themselves out", and that: "I make my assessment on the basis of the [respondent's] evidence and the treating doctors . … (emphasis added). That evidence required a conclusion that the respondent still had pain and disabilities in her left wrist and neck, and probably would continue to do so. 30 In the circumstances, I am satisfied that this Court should reassess the amount to which the respondent is entitled for future economic loss, that the amount awarded is too low, and that the amount suggested by the respondent is reasonable. 31 I would accordingly allow the cross-appeal with costs, and increase the respondent's judgment by $4000 to $21,125. 32 In the circumstances, the appeal lacks any foundation, and should be dismissed with costs. 33 The appellant put in a document in response saying that he did not: "… challenge the assessment of damages by the Court below". That founded a claim by the respondent that the appellant seeks to uphold the assessment of interference with earning capacity" made by the District Court judge leading to her submission that the amount awarded, $6,000 "seems so obviously inadequate so as to invite appellate intervention. It is contended that a more realistic allowance for a cushion or buffer would be $10,000". It seems therefore that ground 5 of the notice of cross-appeal was intended to refer "economic" not "non-economic loss". 34 However, in oral submissions, the respondent made it plain that ground five is intended to be relied upon according to its terms. 35 The appellant likewise appears not to have felt restrained by his statement that he did not "… challenge the assessment of damages by the Court below". His written submissions included the assertion that the trial judge "… would have been justified in finding no significant impairment at the time of the Hearing instead of making an award for non-economic loss of 12%". DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.