Grierson v Roberts [2001] NSWCA 420

New South Wales Court of Appeal

CITATION : Grierson v Roberts [2001] NSWCA 420 FILE NUMBER(S) : CA 40043/01 HEARING DATE(S) : 15 November 2001 JUDGMENT DATE : 21 November 2001

PARTIES : Angela Grierson v Susan Gaye Roberts JUDGMENT OF : Hodgson JA at 25; Grove J at 1

LOWER COURT JURISDICTION : District Court LOWER COURT 1782/98 FILE NUMBER(S) : LOWER COURT Dodd DCJ JUDICIAL OFFICER :

COUNSEL : G. Miller QC with M.J. Ward (Appellant) M. Aldridge SC with I. Ryan (Respondent) SOLICITORS : McLachlan Chilton (Appellant) Brydens Law Office (Respondent) CATCHWORDS : NEGLIGENCE - DAMAGES - MOTOR ACIDENT - CAUSATION - STANDARD OF PROOF FULFILLED - CALCULATION OF ECONOMIC LOSS - REQUIREMENTS OF INJURED PARTY TO MITIGATE DAMAGE - PROPORTIONALITY OF NON ECONOMIC LOSS LEGISLATION CITED : Motor Accidents Act 1988 CASES CITED: Fox v Wood 1981 148 CLR 438 Marsland v Andjelic 1993 NSWLR 162 DECISION : APPEAL DISMISSED WITH COSTS

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40043/2001 DC 1782/1998 HODGSON JA GROVE J

Wednesday 21 November 2001 ANGELA GRIERSON v SUSAN GAYE ROBERTS

JUDGMENT 1 GROVE J: This is an appeal challenging the assessment of damages awarded to the Respondent by Dodd DCJ. The Notice of Appeal articulates some nine grounds but it will be convenient to deal with them in terms of the argument developed by Mr Miller QC and Mr Ward who appeared for the Appellant at the hearing of the appeal. 2 The Respondent was injured in a motor collision on 7 May 1996. She had been born on 12 February 1951 and she was married in 1970. There were short breaks in employment during the infancy of her two children and between 1983 and 1985 after her place of employment closed down but, significantly, she worked constantly from 1985. In 1994 she became employed by the Quix food store organization as a trainee store manager and in 1996 she was promoted to Fast Food Coordinator. That position became redundant but a manager's position at equivalent salary was offered to her and there was evidence from the Human Resources Manager of her employer that she had prospects of further promotion to a position of Area Manager. 3 Subsequent to the accident the Respondent attended for work on a staged rehabilitation basis of two, then four, then six hours per day. The employer regarded the return to work as "unsuccessful" and, despite the Respondent's resistance, her employment was terminated. 4 The Respondent complained of symptoms particularly affecting her neck and left arm. The first ground of argument contended that in respect of findings as to disability the learned trial judge failed to apply the requisite standard of proof: s140 Evidence Act, and that he erred in accepting the existence of causal relationship between the admitted breach of duty of care and the Respondent's injuries and disabilities. 5 After reference to medical evidence which it is unnecessary to recapitulate for the purpose of dealing with this argument his Honour said: "There is much in medical science that is still a mystery. The plaintiff had no pain in the left arm before the accident. She says she has pain in the left arm now. I accept her as a witness of truth and therefore I find that she does have pain in the left arm. There are eminent medical practitioners who do not think this is caused by the accident and others who think that it is, or could be. Bearing in mind that she had no such pain before the accident and no explanation is given as to how it otherwise comes about, and because according to at least some medical specialists it is possibly related to the accident injury I so find." 6 Attention was directed to the appearance of the word "possibly" in that extract and it was submitted that it was thereby demonstrated that his Honour had determined the issue in favour of the Respondent by applying a standard of proof less than probability. I would reject the submission. The word "possibly" is related to the views of some medical specialists and not to the finding, already expressed, that the Respondent was a witness of truth and does have the pain claimed. There was abundant evidence to support his Honour's finding in addition to the credibility of the Respondent. For example, Dr Ellis had opined: "As a result of the motor vehicle accident in May 96, Mrs Roberts has suffered musculo-ligamentous contusion, aggravation of degenerative change in her neck and ruptured cervical disc demonstrated in the myelogram at the C6/7 level with evidence of nerve root, thecal sac, compression. The C5/6 disc was injured also with aggravation of degenerative change. There are secondary effects in the left upper limb consequent on the neck injury. There is a 25% permanent impairment of her neck and a 20% permanent loss of efficient use of her left upper limb at and above and below the elbow." 7 Focus was taken upon the absence of confirmatory findings of nerve root pressure by the electrical conduction studies made by Dr Teychenne. In cross examination he explained: "Q. Doctor, you weren't able to detect clinical cervical nerve root compression from any of the testing which you conducted, were you? A. No, as I said there's a – neurophysiological investigations are 70 per cent accurate. There's a 30 per cent chance that she had compression and I couldn't detect it. Q. What matters have you then relied on in ultimately arriving at the conclusion you've expressed that she could have left cervical radiculopathy? A. That's based on her clinical history." 8 Mr Miller acknowledged that Dr Teychenne's opinion was therefore dependent upon the Respondent's credibility and in written submissions an analysis was offered of alleged inconsistent histories to medical examiners and a conclusion that she was unreliable was invited, hence eroding the necessary proof of causative nexus between accident and disability. 9 The issue was plainly in contest at trial and I am unpersuaded that his Honour's finding was not open to him nor am I persuaded that it was erroneous having regard to the relevant evidence. 10 The next argument was directed towards elements of damage for economic loss. Challenge was made against the selection of various ingredients used as guides for assessment of these items. For loss between the date of accident and the graduated attempt of resumption of employment, his Honour selected a guide figure of $600 per week nett. Certain wages records produced by the employer showed figures of nett payments of $482 per week which the Appellant submitted should represent the upper limit of any guide figure. That figure ignores the value of the employer's compulsory contribution to the Respondent's superannuation benefit and the supply of a car which Ms Yiannacou (the Human Resources Manager) confirmed was available to the Respondent in respect of private use and which, as part of salary package, she said she would value at "at least $10,000 per annum". 11 The figure selected by his Honour of $600 per week can be dissected into $118 per week nett added to the $482 per week acknowledged by the Appellant. Assuming that Ms Yiannacou's estimate of vehicle private use was in gross terms a notional tax allowance of nearly $4,000 per annum has been made. That observation includes allowing nothing for the value of the employer's superannuation contribution. No precise taxation rates were put before the Court and, given the factors noted, it was well within discretionary ambit to select the figure of $600 per week as a guide for the assessment of economic loss during the specified pre-trial period. 12 Beyond that span, a figure of $695 per week nett was selected which was, for assessment purposes, reduced to $595 per week, the difference of $100 representing an evaluation of retained earning capacity. 13 The challenge was essentially similar to that advanced against the earlier figure and it was submitted that $695 had no basis in the evidence and was purely speculative or, at most, intuitive. Mr Aldridge SC and Ms Ryan who appeared for the Respondent pointed out that the figure could be regarded as made up of components of $541 per week wages and $42 per week value of superannuation subsidy (both figures extracted from wage records which showed that the employer had changed from a fortnightly to a four weekly pay cycle), together with $120 per week for private use of a car. All figures were nett of taxation. No error is shown in the adoption by his Honour of the stated figure. 14 It was argued that the valuation of residual capacity at $100 per week was so low as to be outside of discretionary range and such as to attract intervention and reassessment by this Court. I do not accept that argument. As at January 1999 Dr Tam reported that the Respondent was unfit for any work including her previous employment and advised that "she is not to lift any objects more than five kilograms in weight to prevent aggravation of her cervical spondylosis and radiculopathies". The Respondent's evidence was that there had been no marked improvement and his Honour accepted her veracity. The Appellant pointed to concessions by the Respondent in cross examination, in particular concerning her abilities to perform various tasks. There is an obvious difference between ability to perform a task and the ability to perform the task repeatedly with the constancy required of employment. The evidence justified the finding that the residual capacity of the Respondent was of extremely modest value. 15 The next thrust of submission was centred upon s39 of the Motor Accidents Act (to which statute sections hereinafter mentioned refer) namely: "(1) An injured person is under a duty to mitigate his or her damages, and, therefore, in assessing damages in respect of a claim, consideration is to be given to the steps taken by the injured person and to the reasonable steps that could have been or could be taken by the injured person to mitigate those damages. (1A) Those steps include the following: (a) giving the earliest practicable notice of the claim in order to enable the assessment and implementation of the matters referred to in paragraphs (b)-(d). (b) undergoing medical treatment, (c) undertaking rehabilitation (including the formulation and undertaking of an appropriate rehabilitation program), (d) pursuing alternative employment opportunities. (2) In any proceedings to enforce a claim, the onus of proving that all reasonable steps to mitigate damages have been taken by the injured person lies with the claimant." 16 The Appellant pointed to evidence elicited in cross examination that, since being terminated by Quix, the Respondent had looked for casual light work in two local papers, apparently circulating in the area in which she lived. The issue (no submission was made about subsections 1A(a),(b) or (c) in this regard) was whether the Respondent had proved that she had taken reasonable steps to pursue alternative employment opportunities. It is implicit that such opportunities must exist. 17 His Honour noted that the Respondent had not registered at Centrelink but she had visited that office twice and that she had found nothing suitable by her examination in the newspapers. He found that "the reality is that any employer is reluctant to employ someone of the (Respondent's) age with her limitations because of back and arm pain." He did not in terms refer to s39. 18 The matter needs to be looked at in the context of the whole of the evidence. The Respondent had attempted to return to work at the obvious place, her former employer. The evidence shows that she resisted termination but it was the employer's decision, rather than hers, that she could not fulfil the duties required of her. The work at which she failed to meet employer requirements involved computer operation, thus the Respondent might be taken to appreciate that at least that employer regarded her as unfit for what must have been essentially light physical work. 19 Whether the steps taken by the Respondent were reasonable must be gauged in the light of extant disabilities and her entitlement not to aggravate her condition in respect of which the comment of Dr Tam abovementioned is pertinent. The requirement of the statute is that the injured person take reasonable steps and not that there be engagement in ritual or futility. Having regard to the condition of the Respondent as found and in the context of the whole of the evidence, I find no error in his Honour's refraining from reducing the Respondent's damages on the basis that she had not taken requisite steps to mitigate damage. 20 A ground was advanced asserting that an award of $4,000 to avoid the detriment to the Respondent of the kind identified by the High Court in Fox v Wood 1981 148 CLR 438 was erroneous and although it was not pressed with vigour it was not expressly abandoned. The accident had occurred in circumstances which gave rise to worker's compensation entitlement in the Respondent and payments were, as his Honour remarked, "said to be" $20,317.20. I gather this may have emanated from the Bar table as it was further remarked that there was no evidence of this nor agreement but having regard to statutory rates, time off and evidence of incapacity, an estimate could be made and a figure assessed. His Honour being left with no other material to do justice between the parties was well entitled to reach the conclusion which he implemented. 21 The proportion between the Respondent's injuries and incapacities and a most extreme case was assessed at 33 percent. The Appellant drew attention to the marked differences in quantum which would follow comparatively minor differences in opinion as to the proportion expressed in terms of percentage. Applying s79A, his Honour's assessment of 33 percent resulted in an award of $93,500, by calculating that percentage of the applicable maximum of $284,000. The Appellant's submission was that 33 percent was excessive and beyond discretionary range and a proportion of 25 percent was suggested. If that suggestion were to be implemented, it was conceded that the applicable maximum on reassessment by this Court would be the current $296,000: Marsland v Andjelic 1993 NSWLR 162 @ 168. However a proportion of 25 percent is "converted" by the statutory table to 6.5 percent and the resultant actual element of award would be $19,000 ($19,240 rounded in accordance with s 79A(7)). 22 Of course, the statute operates in its express terms and what his Honour was required to do was to estimate the "severity of the non economic loss" of the Respondent as a proportion of a most extreme case. The requisite exercise is thus to compare or contrast severity and not the financial consequences of the application of the arithmetical mechanics specified by the table enshrined in s79A(6). 23 I have earlier made brief reference to the Respondent's injuries and disabilities. Either she will come to major surgery, the outcome of which is unpredictable with any certainty or she will have life long disability and pain with possible temporary relief from time to time as a result of Dr Walsh's ministrations. She has lost her employment and any realistic chance of significant resumption and her testimony was accepted that employment was the source of great personal fulfilment as well as financial reward. She has been altered from a very active woman to one of limited agility with consequent increase in body mass, itself a cause of distress. Whilst I might not have assessed the Respondent's severity as proportioned as highly as 33 percent of a most extreme case, the question is whether his Honour's assessment was outside of the bounds of the sound exercise of judgment. In my opinion it was not. 24 The appeal should be dismissed with costs. 25 HODGSON JA: I agree with Grove J. **********