New South Wales Court of Appeal CITATION : SRA NSW v Kathleen Farrelly & Anor [2001] NSWCA 159 FILE NUMBER(S) : CA 40237/00 HEARING DATE(S) : 10/04/01 JUDGMENT DATE : 4 June 2001 State Rail Authority of NSW PARTIES : v Kathleen Marie Farrelly & Anor JUDGMENT OF : Meagher JA at 1; Handley JA at 13; Adams J at 14 LOWER COURT JURISDICTION : District Court LOWER COURT 70181/94 FILE NUMBER(S) : LOWER COURT Maxwell ADCJ JUDICIAL OFFICER : A: Mr C Hoeben SC/Mr P Biggins COUNSEL : R1: Dr A Morrison SC/Mr B Twomey R2: Mr K Kelleher A: Dibbs Barker Gosling SOLICITORS : R1: Turner Whelan Solicitors R2: Sparke Helmore Solicitors CATCHWORDS : Tort - Damages - where plaintiff suffered injuries in two separate accidents - distribution of damages against each defendant - assessment of damages - appeal SRA v Farrelly allowed - appeal Pells v Farrelly dismissed - cross appeal Farrelly v SRA allowed. DECISION : Appeal allowed; Counsel to bring in short minutes giving effect to these reasons; Appellant's success to be reflected in a costs order in favour of the SRA. THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40237/00 MEAGHER JA HANDLEY JA ADAMS J Monday, 4 June 2001 STATE RAIL AUTHORITY OF NSW v FARRELLY PELLS v FARRELLY JUDGMENT FACTS The respondent, Mrs Farrelly, suffered injuries in two accidents which occurred approximately two years apart. The first accident was a fall at Gosford railway station. The second was a motor car accident occasioned by Mrs Pells. Mrs Farrelly sued the SRA and Mrs Pells in separate actions in respect of her injuries. Those actions were heard together and she was successful against both defendants. The SRA and Mrs Pells appealed from the trial judge's assessment of damages. Mrs Farrelly cross appealed on this issue. The SRA also appealed the trial judge's distribution of damages as against each defendant. HELD per Meagher JA (Handley JA & Adams AJA agreeing): (i) There is no basis upon which to interfere with the trial judge's award of general damages against either defendant. (ii) As to damages for matters other than non-economic loss, the percentages ordered to be paid by each defendant should be reversed, so that the SRA is liable for 40% of the sum, and Mrs Pells is liable for 60%. (iii) The respondent is to have an allowance for past and future loss of superannuation. Counsel are to devise a mode of calculating the figure. ORDERS 1 In the appeal, SRA v Farrelly, appeal allowed. 2 In the appeal Pells v Farrelly, appeal dismissed. 3 Cross appeal by the first respondent allowed. 4 SRA to have an order for costs. 5 Counsel to bring in short minutes giving effect to these reasons. THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40237/00 MEAGHER JA HANDLEY JA ADAMS J Monday, 4 June 2001 STATE RAIL AUTHORITY OF NSW v FARRELLY PELLS v FARRELLY JUDGMENT 1 MEAGHER JA: This is an appeal by the SRA against a verdict in favour of the plaintiff, Mrs Farrelly. It was heard by this Court together with an appeal by Mrs Pells against another verdict in favour of Mrs Farrelly, and with a cross-appeal by Mrs Farrelly. The former verdict was in the sum of $295,091.63. The latter was in the sum of $238,546.02. The two actions were heard together by his Honour Acting Judge Maxwell. The reason why they were heard together was because of the difficulty of disentangling the undoubted damage which Mrs Farrelly suffered as between the two defendants. 2 In the former case Mrs Farrelly sued because of what she alleged was the SRA's negligence in its maintenance of a platform on the Gosford railway station, precipitating a fall by her when she alighted from a train at that station. Liability was contested, but only - it would seem - in a token way, as his Honour had no difficulty in concluding that the SRA was liable. Thereafter the matter proceeded on the assessment of damages. In the latter case, Mrs Farrelly sued Mrs Pells in respect of injuries she suffered in a motor car collision. Liability was admitted, but damages were very much in issue. 3 The accident in the former case took place on 4 October 1991. The accident in the latter case occurred nearly two years later, on 11 October 1993. 4 His Honour found that Mrs Farrelly was a witness of truth, but prone to exaggerate her ailments and misfortunes. 5 It is undoubted that in the railway accident she suffered some back injury, together with injury to her lower back - a collation of injuries not unusual in this type of litigation. However, the evidence taken as a whole compels the conclusion that these injuries had nearly healed by the time of the second, motor vehicle, accident. That is the view which the bulk of the medical evidence supports. It is also what she herself said in her evidence. She had almost given up seeing doctors about nine months before the second accident. 6 Then the second accident occurred, and, following it, three results of significance. First, her previous injuries were re-agitated and aggravated. Secondly, some new injuries appeared: for example, injury to her left leg. Thirdly, and most importantly, psychiatric symptoms of some gravity manifested themselves. 7 His Honour's judgment is dated 13 March 2000. In it, his Honour found that all injuries, physical and psychiatric, will have resolved themselves by the conclusion of four years from that date. 8 The matter was argued by all counsel with exemplary consistency and commonsense. Mr Hoeben SC, learned senior counsel for the SRA, accepted many of the criticisms made of his Honour's figures by Mr Morrison SC, learned senior counsel for Mrs Farrelly; and Mr Morrison, in turn, moderated his criticism of Mr Hoeben's figure. What motivated both gentlemen, very properly, was a distaste for the prospect of a new trial. They have left for the Court only three issues to decide. 9 The first issue concerns his Honour's treatment of general damages (or damages for non-economic loss. In the present context there is no difference between the terms). His Honour awarded $25,000 against the SRA and $68,250 against Mrs Pells. In my view neither figure ought be disturbed. In the present case, the most important component of the figure is the psychiatric disturbance. In this respect, as in most others, there was a wide conflict between the testimony of the various doctors (only one of whom was called to give oral evidence). Dr Jolly attributed 80-85% of the psychiatric problems to the second (motor car) accident, 15-20% to the first (railway) accident. Dr Phillips broadly agreed with him. These two doctors were accepted by his Honour. Their assessments are borne out of the fact that no traces of psychiatric disturbance occurred before the second accident. That, of course, does not mean that the perpetrator of the first accident has no liability in this regard. The first accident to some extent rendered Mrs Farrelly predisposed to mental disturbances. The difference between $25,000 and $69,000 is close enough to 20%-80%. 10 The second issue is the manner in which damages for matters other than non-economic loss should be distributed. His Honour, without any explanation, awarded them 60% as against the SRA, and 40% as against Mrs Pells. I am afraid I cannot understand this. The evidence (which I have endeavoured to summarise very shortly above) shows quite clearly that she had nearly recovered from the first accident when the second accident occurred. And, whilst in a sense the second accident may be considered as merely aggravating the symptoms which flowed from the first accident, it should more accurately be described as the major independent cause of the lady's woes. I agree with Mr Hoeben's submission that the percentages should be reversed, so that they lie 40% as against the SRA and 60% as against Mrs Pells. 11 The only other issue which requires resolution is superannuation. His Honour appreciated that this should have been allowed, but did not do so because of the difficulty of the task. However, this is no excuse. Some mode of calculating the figure must be devised, however rough. Counsel can undertake this task. 12 To sum up: I am in favour of allowing the appeal. Counsel should bring in short minutes giving effect to these reasons. The appellant's success should be reflected in a costs order in favour of the SRA. 13 HANDLEY JA: I agree with Meagher JA. 14 ADAMS AJA: I agree with Meagher JA. 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.