New South Wales Court of Appeal CITATION : WITHERS v DEERING [2002] NSWCA 218 revised - 12/07/2002 FILE NUMBER(S) : CA 40546/01; 40547/01 HEARING DATE(S) : 25/06/02 JUDGMENT DATE : 25 June 2002 PARTIES : Heath Withers v Ronald Deering; Heath Withers v Robyn Deering JUDGMENT OF : Heydon JA at 1& 42-45; Foster AJA at 2-41 LOWER COURT JURISDICTION : District Court LOWER COURT 9156/99 FILE NUMBER(S) : LOWER COURT Hogan ADCJ JUDICIAL OFFICER : Mr Watson - Applicant COUNSEL : Mr Lidden - Respondent Sparke Helmore - Applicant SOLICITORS : Brydons Law Office - Respondent CATCHWORDS : Appeal against assessment of damages. CASES CITED: Lake Macquarie City Council v McKellar [2002] NSWCA 90 at [87] - [94]. See also [34] DECISION : Appeal re Mrs Deering:; The appeal is dismissed - The appellant is to pay the respondent's costs.; Appeal re Mr Deering:; The appeal is dismissed - The appellant is to pay the respondent's costs. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40546/01 CA 40547/01 DC 9156/99 HEYDON JA FOSTER AJA TUESDAY, 25 JUNE, 2002 Heath WITHERS v Ronald DEERING Heath WITHERS v Robyn DEERING Judgment 1 HEYDON JA: I ask Foster AJA to give the first judgment. 2 FOSTER AJA: These are appeals from two decisions given by Hogan ADCJ in the District Court on 6 July 2001. By those decisions his Honour awarded damages to two plaintiffs, being husband and wife, Ronald Deering ("Mr Deering") and Robyn Deering ("Mrs Deering") in respect of injuries, disabilities and consequential financial loss occasioned to each of them in a motor vehicle accident on 2 May 1998. The defendant admitted liability in each case. His Honour was required merely to assess damages. The two matters were heard together, as have been heard the two appeals. 3 At the time of the accident Mr Deering was driving his vehicle and Mrs Deering was a front seat passenger. Each was wearing a seat belt. There was a head-on collision of considerable violence with the defendant's vehicle, which was being driven on the incorrect side of the road. 4 It is convenient to consider, in the first instance, the appeal in relation to the award given to Mrs Deering. It was made up as follows: Non-economic loss $65,500.00 Expenses 695.00 Future treatment l,000.00 Past loss of income 35,791.00 Future loss 80,000.00 TOTAL $ 182,986.00 5 The appellant challenges the components for non-economic loss, pass loss of earning capacity and future loss of earning capacity. 6 His Honour accepted Mrs Deering as a witness of truth. She was born in 1956 and left school at age fifteen. She worked as a machinist and factory hand until her marriage in 1972. There were four children of the marriage. She could return to employment until 1997, when she joined Mr Deering as a partner in a family business of gyprock sanding contracting. This involved the sanding and smoothing of gyprock sheets, when installed by gyprock fixers in houses under construction. It was demanding and dirty work which, it appears, the fixers were prepared to sub-contract out. She assisted in the physical labour and also attended to the administrative side of the business. It was a small but reasonably profitable business. She had had a previous accident which excluded her from work involving heavy lifting, bending and twisting. His Honour accepted that this did not, however, prevent her from doing the sanding work involved in the partnership. Apart from this her general health was good at the time of the accident. She had had no problems with her neck. 7 In the accident, as his Honour found, she suffered marked seat belt bruising and fractures of the second rib and sternum. She was admitted to Gosford Hospital for four days and discharged into the care of her general practitioner. She saw the doctor on occasions in May, June and August and received treatment for pain relief. He considered she would have chest wall pain from time to time because of the rib fracture and the sternum fracture should heal without residual problems. He advised physiotherapy but the plaintiff could not afford this. He considered that she might suffer some psychological upset as a result of the accident and its sequelae. At first she could not work at all. She returned to light duties, however, on 12 October 1998. As her husband was not able to work, the partnership business was carried on by Mrs Deering with the help of her son and a friend of his. Unfortunately, this led to unsatisfactory results. Mrs Deering could not do the work properly and the friend was, apparently, not of significant help. 8 Mrs Deering gave evidence of suffering pain in the chest when moving and sneezing or deep breathing in the weeks after the accident; also neck pain and a lot of pain in the low back. This was particularly bad when she attempted to return to work. 9 In April 2000, the business having failed, the family was forced to move to the Central Coast of New South Wales where Mrs Deering obtained part-time cleaning work in varying amounts, which she was able to do. However, she does require, on occasions, pain-killing medication in relation to the doing of the work. 10 At the time of the hearing her complaints were of occasional soreness in the area of the fractured sternum. She suffered significant neck pain and headaches from time to time and found bending from the waist down caused back pain within a few minutes. 11 No doctors were called in the case. The case proceeded on the basis of tendered reports. His Honour reviewed the written medical evidence in detail. He preferred the evidence of Doctors Tan and Ellis to the evidence of the defendant. He was entitled to do so. There is no need to read this evidence out. He summed-up her situation resulting from the accident as follows: "In summary, I am satisfied, on the balance of probabilities, that the plaintiff suffered severe shock in a violent accident which caused marked seat belt bruising and fractures to a rib and the sternum. Those bony injuries healed gradually over a period of about two years. She also suffered an aggravation of a pre-existing but asymptomatic pathology in her neck, leading to neck pain, restriction of movements and headaches, which have continued but which may be expected to settle down over a short time. There was also an aggravation of a pre-existing and already symptomatic lower back condition which by now has largely reverted to its pre-accident condition." 12 The plaintiff's husband was severely and permanently injured in the same accident and their business failed. The accident and its consequences caused emotional stresses to her, which were themselves heightened by the suffering and death of her mother. They did not result in clinical depression calling for treatment and they were not entirely the result of the accident, but they play some part in the assessment of her damages. 13 His Honour awarded $65,500 for non-economic loss on the basis of thirty per cent of a most extreme case. 14 The appellant submits this is an excessive award. Counsel for Mrs Deering submitted that his Honour's statement, to which I have just made reference, should be read in the light of his acceptance of the evidence of Doctors Tan and Ellis. 15 Doctor Tan's report refers to her suffering from an aggravated cervical spondylosis. Doctor Ellis diagnosed an aggravation of cervical spondylosis as the chief cause of her impairment of function. He anticipated some improvement with continued conservative care but that she would remain permanently unfit for heavy work. As I see it, the question posed is whether his Honour's award is at the upper limit of judicial discretion or whether it exceeds it. 16 His Honour had the advantage of seeing and hearing the plaintiff. He formed a favourable impression of her as a witness. He was in a far better position to evaluate the effect this accident has had upon her 17 With some hesitation I have decided that this award should not be interfered with. 18 Past Lost Earning Capacity His Honour based his award on a calculation submitted by counsel for the plaintiff, the arithmetic of which was not in dispute. The appellant complains that the question was a complicated one and that the following factors do not appear to have been considered in his Honour's judgment, namely: "(a) the plaintiff returned to work, albeit light duties, on 12 October 1998; (b) the plaintiff was in partnership with her husband in the business of gyprock sanding; (c) it is plain that Mrs Deering had a substantial residual earning capacity, perhaps not for the most arduous of work, but certainly in other areas." 19 So far as the reference to the partnership is concerned, I regard this as perhaps the more significant complaint. However, it is clear that the partnership and its potential earnings were taken into account by his Honour. The explanation of their relevance and of the calculation based upon partnership earnings is given in the submissions of counsel, responding in this appeal, in the following way: "At the date of judgment 164 weeks had elapsed from the date of the accident. The respondent was compensated in the amount of $35,791. This was the actual amount sought at the trial. It involved a calculation of $320 net per week for 164 weeks, $52,480 less the period the respondent attempted to continue in the old business, being approximately one year, and the trivial amount which she earned from cleaning work in the weeks leading up to trial. The amount of $320 per week was based upon partnership earnings as shown in the relevant taxation return with an allowance being made for tax." 20 No attack has been made on the components of this award. It is possible that some allowance might have been made for contingencies but the period involved was short and the failure to do so does not, in my view, invalidate his Honour's award in this regard. There was a factual basis for this in the evidence. The respondent was working as a partner. There was no reason why, absent the accident, she would not have continued more or less indefinitely. 21 The head contractor gave evidence the partnership was working well and would have been continued to be employed. It could not continue after the respondent was injured. Attempts to maintain employment failed because Mrs Deering, her son and the young helper could not maintain the speed or quality of the work required. This attempt to mitigate damages was reasonable in the circumstances but failed, with the result that Mrs Deering was forced to utilise her impaired earning capacity in part-time cleaning. No other work was available to her. In my opinion the attack on this component should fail. 22 Loss of Future Earning Capacity His Honour awarded $80,000 as a cushion involving, as he said, "more a judgment than calculation". This represents a net loss of $150 per week until age sixty-five. In this respect he made the following finding: "For the future the plaintiff accepts that she has a capacity for part-time work and that it may not be long before she will be fit to work full-time, though in some occupation other than that which is the only one for which she has any experience, and in one which does not call for strenuous activity. Her chances of actually finding such work are not great in all her circumstances." 23 She had in fact found part-time poorly remunerated cleaning work. There was evidence that she could and would have continued to work in the partnership had she been able to and had it continued and this brought in earnings of $320 per week. She had, therefore, a very specialised earning capacity in the gyprock sanding business dependent upon the partnership. The accident deprived her of this opportunity to earn. When it was taken from her, her earning capacity was significantly diminished. His Honour was justified, in my view, in taking the approach that he did. The amount awarded is reasonable and would take into account many contingencies, including the cessation of the partnership before the respondent reached age sixty-five. In my view this attack should also fail. 24 In the result, all aspects of the appeal in this case failed. The result should be that I propose the appeal should be dismissed with costs. 25 I turn to the appeal brought in respect of the award to Mr Deering. His Honour awarded $449,350. The submissions as filed attacked the components to this award. However, counsel, in oral submissions, departed from this approach and made a general attack, on the basis that significant errors in his Honour's judgment necessitated a new trial. 26 The major attack was to the effect that his Honour had failed to take into account that the medical evidence, relied upon as demonstrating the effect of the subject accident upon the plaintiff's mental and emotional state, was flawed, in that Doctors Rivett and Tsang, who provided the principal evidence as to his psychiatric condition, had not been apprised of the fact of a 1994 motor vehicle accident in which he had suffered significant psychological symptoms. I observe that his Honour specifically noted this matter in his judgment and was obviously aware of it in his considerations. 27 It was submitted, in effect, that it was not possible to accept their evidence as to the plaintiff's current psychiatric condition, particularly his paranoid delusions, as being caused by the subject accident without an attempt being made to, as it was put, disentangle the effects of the previous accident through further evidence from these doctors. 28 It may be noted that the reports of these doctors were served in accordance with the relevant Rules. The difficulty was apparent from a reading of them. The doctors were not required for cross-examination. No evidence was called for the defendant on this matter. The plaintiff was not cross-examined to suggest that he had deliberately withheld from those doctors the information as to his earlier problems or, indeed, to suggest there was no significant difference in his psychological problems after the subject accident. 29 The medical evidence relating to the previous accident and its consequences was, however, put before his Honour in the form of reports and particulars and he would have obviously had regard to it. In essence, the previous accident had produced what was described as "an adjustment disorder with depressed mood" and also a strong phobia about driving cars. There was no suggestion that he was suffering from the florid paranoid psychotic symptoms that appeared after the second accident. In fact, after the 1994 accident he had been able to adjust to its physical consequences and, despite his inability to do the heavy work of a gyprock fixer, which he had done previously, he was able to establish the business of a gyprock sander, in partnership with his wife. His own evidence made it abundantly clear that his ability to work in his own business was most significant to his self-esteem. The loss of it was a devastating psychological blow. 30 His Honour deals with this matter in his judgment at p 28. He said: "As a result of his injuries and other consequences of the accident, he suffered psychological damage. I do not see that aspect of his injury as being a mere exacerbation of a pre-existing condition. None of the doctors so describe it. He was not receiving any treatment for his pre-existing phobia or adjustment disorder at the time of the subject accident. He was driving at the time. His business was thriving. His former psychological condition may be evidence that he was more than ordinarily susceptible to psychological harm from any further accident. Again, there is no direct evidence about that. I do not think it matters. The psychological injury that he suffered after this accident was clearly the result of the other injuries and disabilities that it caused, as outlined by Doctor Grady. It is entirely a consequence of the subject accident. What was first diagnosed as a post-traumatic stress disorder later developed into a paranoid disorder, from which he is still suffering, although his condition is tempered by medication. There is a good chance, though there is no certainty, that his paranoid disorder may be cured by treatment." 31 I consider that, notwithstanding the problems referred to, his Honour was justified in making these findings. The development of a post-traumatic stress disorder was amply based upon the plaintiff's own evidence relating to the second accident and his feelings of horror at seeing the condition of his wife at that time, when he, reasonably, thought that she might be dying of a heart attack. 32 Also the development of paranoid symptoms of suspicion, including a dangerous outburst in a club which almost occasioned his involuntary committal to a psychiatric institution, is amply demonstrated in the evidence and could ground his Honour's finding of causation by the second accident. 33 It was also submitted that there was a failure to disentangle the physical effects of the second accident from those occasioned by the first accident and that as a result insufficient weight was given to the previous injuries in determining the awards for non-economic loss and past and future impairment of earning capacity. 34 His Honour did not ignore the first accident. He made clear reference to it and its effects in his judgment. He notes, however, that, although, as a result, the plaintiff could no longer be a gyprock fixer, he was able to take on the less physically arduous work of a sander and perform it efficiently. 35 The injuries in the second accident were themselves severe. His Honour notes he suffered a head injury near the left eye and fractures of the sternum and left rib and the chest wall injury was severe. As a result he suffered widespread pain throughout the cervical, thoracic and lumbar spine. Also, he developed vertigo and bilateral tinnitus which has increased his sensitivity to loud noise. All these were considered in the medical evidence to be long-lasting if not permanent and likely to adversely affect his future earning capacity. Doctor Tan gave a guard prognosis and thought that accelerated cervical and lumbo-sacral spondylosis could be ongoing complications. There was medical evidence accepted by his Honour that these problems were chronic in nature. His Honour said of the physical injuries: "The fracture of the sternum has healed. The chest pain from the fractured rib has not and it does not seem likely that it will ever be completely cured. The accident also caused a gradual development over time of pain and restriction in the neck and back, which also is not likely to get better and which may well become worse." 36 He went on to say that the probabilities favoured the conclusion that the injury was an exacerbation of the pre-existing condition of his cervical and thoracic spine. 37 I do not perceive error of the kind suggested in his Honour's finding in this regard. His Honour was able, in my view, sufficiently to distinguish, particularly with the assistance of the lay evidence, between the effects of the two accidents. 38 The defendant bore the onus of establishing that the ongoing effects of the earlier accident would, in any event, have produced significant future disability. There was no apparent attempt to discharge this onus by cross-examination of the doctors or the calling of evidence in reply. 39 I consider that these attacks on his Honour's judgment all fail. 40 There was no attack on the individual components of the judgment. I recall, however, that having considered the now abandoned written submissions as to these components, I had formed the view that in any event the appeal should not succeed in relation to them. 41 I propose also that this appeal should be dismissed with costs. 42 HEYDON JA: I agree with Foster AJA. The oral submissions on behalf of the were presented by the same counsel as the counsel who signed the written submissions but who did not appear at the trial. The oral submissions were quite different from the written submissions. This is particularly true of the appeal in relation to Mr Deering. The only excuse proffered was that the appeal books were not available. However, the transcript and exhibits apparently were. Even if the appeal books were not available, once they were available any argument along the lines of those put orally should have been reduced to writing and filed and served pursuant to whatever leave was necessary. 43 The conduct of the appeals on behalf of the appellant did not comply with what Ipp AJA said was the desirable approach in Lake Macquarie City Council v McKellar [2002] NSWCA 90 at [87]-[94]. See also [34]. 44 I do not propose any order additional to those proposed by Foster AJA, but in future cases of this kind other courses may be followed. It may not be sufficient in future to proffer the apology proffered on this occasion. 45 The orders of the Court are as follows: In the appeal in relation to Mrs Deering: (1) The appeal is dismissed. (2) the appellant is to pay the respondent's costs. In the appeal in relation to Mr Deering: (1) The appeal is dismissed. (2) The appellant is to pay the respondent's costs. *************** 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.