New South Wales Court of Appeal CITATION : Holbrook v Beresford [2003] NSWCA 15 HEARING DATE(S) : 16/12/02 JUDGMENT DATE : 12 February 2003 JUDGMENT OF : Meagher JA at 1; Stein JA at 18; Santow JA at 19 DECISION : 1. Appeal allowed; 2. Order of verdict below set aside; 3. In lieu of orders below order that the defendant pay the plaintiff the sum of $342,581.98; 4. Order for the defendant to pay the costs below and of the appeal. CATCHWORDS : Damages - s.79A Motor Accidents Act 1988 - application of test in s.79A. LEGISLATION CITED : s.79A Motor Accidents Act 1988 PARTIES : Lee Holbrook (nee Fulton) v Garth Beresford FILE NUMBER(S) : CA 40849 of 2001 COUNSEL : A: Dr A Morrison SC & D Russell R: Mr J D Hislop QC & G Bellew SOLICITORS : A: Fraser Clancy Lawyers R: Blake Dawson Waldron LOWER COURT District Court JURISDICTION : LOWER COURT DC 7486 of 1999 FILE NUMBER(S) : LOWER COURT Gamble ADCJ JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40849 of 2001 MEAGHER JA STEIN JA SANTOW JA Wednesday, 12 February 2002 LEE HOLBROOK (nee FULTON) v GARTH BERESFORD FACTS The appellant (the plaintiff below) was injured in a motorcar accident when passenger in a vehicle driven carelessly by the respondent. In the District Court, the appellant claimed damages in the region of $507,849.00. Judgment was entered in her favour, for the lesser sum of $148,246.68, whereupon she appealed to the Court of Appeal. HELD per Meagher JA (Stein and Santow JJA agreeing) i. The main obstacle in awarding damages under this head in an average action is s. 79A of the Motor Accidents Act 1988. That section requires a plaintiff, in order to succeed, to prove (a) that the accident of which he complains has impaired him significantly for a period of not less than twelve months, and (b) that the severity of his non-economic loss is at least 15% of a most extreme case. ii. Such an obstacle did not exist in the present case, as the defendant had not contested "that the plaintiff fails to meet the relevant thresholds set out in s. 79A". iii. In the court below, the second of the tests in s. 79A was applied separately to each alleged injury as if it stood alone, instead of considering whether the totality of the injuries exceeded the statutory percentage. iv. To seek to apply the s. 79A tests item by item in this way is not only contrary to the statute, and unnecessary in any event because of the defendant's concessions, but is also prima facie unfair to the plaintiff. v. The absence of evidence as to the effects of plastic surgery on the plaintiff's scarred left shoulder did not entitle the judge below to disregard the appearance (future or otherwise) of the plaintiff's shoulder as an ingredient of non-economic loss. Such an approach is impermissible. ORDERS a Appeal allowed; b Order of verdict below set aside; c In lieu of the orders below order that the defendant pay the plaintiff the sum of $342,581.98; d Order for the defendant to pay the costs below and of the appeal. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40849 of 2001 MEAGHER JA STEIN JA SANTOW JA Wednesday, 12 February 2003 LEE HOLBROOK (nee FULTON) v GARTH BERESFORD Judgment 1 MEAGHER JA: In this matter the plaintiff, then Miss Fulton, now Mrs Holbrook, appeals against the inadequacy of a judgment of $148,246.68 in her favour given by Gamble ADCJ. She claims it should have been in the region of $507,849. 2 Mrs Holbrook was injured in a motorcar accident when a passenger in a vehicle driven carelessly by the defendant, Mr Beresford. The car went off the road and turned in the air four times before landing on its roof, with Mrs Holbrook still inside, trapped by her seatbelt. She was eventually released by a passing Samaritan and taken to hospital by ambulance. 3 The defendant's negligence (apart from quantum) is admitted. 4 I shall not recount the components of her Honour's verdict which are not challenged in this appeal. Those which are challenged can be deduced from the following table: ITEM VERDICT APPELLANT'S CONTENTION 1. Non-economic loss $65,320.00 $123,500.00 2. Future economic loss $20,000.00 $120,424.00 3. Loss of superannuation $ nil $ 14,950.70 4. Gratuitous care (past) $20,385.00 $ 54,825.00 (future) $ 3,150.00 $113,854.00 5. Future medical expenses $17,920.00 $ 23,920.00 5 I shall deal with these seriatim. 6 As far as non-economic loss is concerned, the details are left thoroughly obscure by her Honour's rather unsatisfactory judgment. 7 The main obstacle in awarding damages under this head in an average action is s 79A of the Motor Accidents Act 1988. That section requires a plaintiff, in order to succeed, to prove (a) that the accident of which he complains has impaired him significantly for a period of not less than 12 months, and (b) that the severity of his non-economic loss is at least 15% of a most extreme case. However such an obstacle did not exist in the present case, as the defendant had not contested "that the plaintiff fails to meet the relevant thresholds set out in s 79A". It is therefore a matter of some surprise that throughout her judgment her Honour concerned herself with the question whether the statutory thresholds had been met. 8 What is more surprising still is that her Honour applied the second of those tests to each alleged injury as if it stood alone, instead of considering whether the totality of the injuries exceeded the statutory percentage. The plaintiff's case under the heading "non-economic loss" consisted of three items: injury to the shoulder, injury to the neck and back, and psychological injury. As far as injury to the left shoulder is concerned, her Honour made the following finding: "I find the severity of the Plaintiff's non economic loss in respect of the injury to her left shoulder to be 25% of the most extreme case." As far as psychological injury is concerned, her Honour found as follows: "I also find the Plaintiff to have suffered non economic loss of more than the threshold requirement of 15% of the most extreme case in respect of the psychological harm she claims. This injury is also continuing and allowance is made for the counselling recommended in the medical reports. In combination, the injury to the left shoulder and the psychological injury amount to 30% of the most extreme case." As far as injuries to the back and neck are concerned, her Honour found, as she was entitled to, that these injuries were real enough, but were transitory and no longer existed. She said: "I find no evidence of impairment from the injuries to the Plaintiff's back and neck to (sic) significant enough to satisfy the terms of s.79A(3) of the Motor Accident Act 1988." 9 To seek to apply the s.79A tests item by item in this way is not only contrary to the statute, and unnecessary in any event because of the defendant's concessions but is also prima facie unfair to the plaintiff. Thus, it apparently involved disregarding her genuine (but minor) complaints about her injuries to the neck and shoulder. 10 It also seems to have involved a distortion of the evidence. Thus, one of the plaintiff's complaints concerned a severe scar caused by the surgery she had to endure in respect of the left shoulder. The scar had a double significance in regard to non-economic loss: it had an ugly appearance and it caused psychological harm. Of it, her Honour said: "The damage includes the psychological harm caused as well by the appearance of her left shoulder following surgery. As there was no evidence adduced about the possibility of Mrs Holbrook having plastic surgery to repair the scar tissue, following the completion of final surgery to remove the metal plates in the shoulder, I can make no finding in respect of the likely future appearance of the shoulder." Since there was no evidence that future surgery would have any effect on the scarring, her Honour simply did not take it into account. This is, of course, impermissible. 11 Logically, it still remains possible that her Honour's figure of 30% is defensible, despite this catalogue of mistakes of law. Although initially I found this view attractive, I now think that, overall, a figure of 40% would be more appropriate. 12 As far as future economic loss is concerned, the following facts seem incontrovertible: at the time of the accident she had a life expectancy of about 65 years, she would be in the workforce for about another 44 years, she had a good work record, the accident probably skewed her chances of becoming a police officer, and she would have to put up with a permanent shoulder injury for the rest of her life. In these circumstances it seems almost risible to award her a "cushion" of $20,000. On the other hand, it is not a case for awarding a continuing sum of $150 a week (based on the difference between what she is in fact earning at her present clerical job and what she would be earning if she were a policewoman). I do not think we can be more precise, there being so many imponderables, but I should favour awarding her $80,000 as a "cushion". 13 As to loss of superannuation, it would seem that her Honour simply overlooked the matter. In this appeal, the respondent did not argue to the contrary. On the agreed figures for past economic loss (nearly $5,000), the figure for past superannuation is $455. If one takes $80,000 as the correct figure for future economic loss, the figure for loss of future superannuation would be about $9,500. 14 As to past and future gratuitous care, the situation is rather muddled. The plaintiff sought inflated awards based on the plaintiff's evidence in chief under those headings, the defendant was apparently prepared to concede almost nothing. Her Honour, for no apparent reason, accepted the defendant's submissions – after having made generally favourable findings about the plaintiff's credit. Since the plaintiff made very many concessions in cross-examination, the awards under those headings should be calculated on the basis of those concessions. This being so, I can see no way of reversing her Honour's award in respect of past gratuitous care. But the figure for future gratuitous care must be disturbed. Her Honour allowed $3,150.00 only under this heading, that being gratuitous care occasioned by the plaintiff's following operation. This, frankly, is ridiculous, for it allows nothing in the future for those services which must be required to compensate for the virtual loss of full use of the left shoulder with its consequences for lifting above the shoulder. Whilst the figure of $153,854, based as it is on 10 hours per week for 65.5 years, cannot be justified, a figure of half that amount may be. I would therefore award $75,000 in this respect. 15 On the question of future medical expenses, her Honour allowed $17,920 and the appellant submits it should be $23,920. The difference between the two is that her Honour allowed nothing for future pharmaceutical expenses. In view of the pain levels the plaintiff has to endure, and will always have to endure, her Honour's view seems to me clearly wrong. An allowance of $5 per week does not seem wanton. I should uphold the appellant's submissions in this respect. 16 The damages which should be awarded are: ITEM AMOUNT Non-economic loss $123,500.00 Past economic loss $ 4,919.98 Future economic loss $ 80,000.00 Out of pocket expenses agreed $ 15,550.70 Travel expenses agreed $ 1,000.00 Loss of superannuation (past) $ 455.00 Loss of superannuation (future) $ 9,500.00 Gratuitous care (past) $ 20,385.00 Gratuitous care (future) $ 75,000.00 Future medical expenses $ 23,920.00 TOTAL $354,230.68 Defendants to have credit for: $ 11,648.70 BALANCE $342,581.98 17 In my view, the following orders should be made: i. Appeal allowed; ii. Order of verdict below set aside; iii. In lieu of the orders below order that the defendant pay the plaintiff the sum of $342, 581.98; iv. Order for the defendant to pay the costs below and of the appeal. 18 STEIN JA: I agree with Meagher JA. 19 SANTOW JA: I agree with Meagher JA. ****** Last Modified: 02/13/2003 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.