New South Wales Court of Appeal CITATION : Skillin v Hurley [2004] NSWCA 286 HEARING DATE(S) : 15 April 2004 JUDGMENT DATE : 25 August 2004 JUDGMENT OF : Handley JA at 1; Giles JA at 34; Hodgson JA at 35 DECISION : 1. Appeal allowed in part.; 2. Judgment for the plaintiff for $544,346 set aside except as to costs.; 3. In lieu thereof substitute a judgment for the plaintiff for $441,585 with effect from 21 March 2003.; 4. Appeal otherwise dismissed.; 5. Appellant to pay one-half of the respondent's costs of the appeal. CATCHWORDS : DAMAGES - personal injuries - no question of principle - ND LEGISLATION CITED : Motor Accidents Act 1988 CASES CITED : Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 PARTIES : Teresa Skillin (Appellant) Maria Evelyn Hurley (Respondent) FILE NUMBER(S) : CA 40571/03 COUNSEL : K P Rewell SC/P Perry (Appellant) G O L Reynolds SC/R J M Foord (Respondent) SOLICITORS : Keddies (Appellant) Adams Leyland (Respondent) LOWER COURT District Court JURISDICTION : LOWER COURT DC 74/00 FILE NUMBER(S) : LOWER COURT English DCJ JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40571/03 HANDLEY JA GILES JA HODGSON JA 25 AUGUST 2004 TERESA SKILLIN v MARIA EVELYN HURLEY CATCHWORDS DAMAGES – personal injuries – no question of principle FACTS The plaintiff suffered a whiplash injury in a rear end collision as a result of contact with the defendant's vehicle as they were leaving a supermarket car park. Each driver blamed the other. The trial Judge accepted the plaintiff's evidence and awarded substantial damages. The defendant appealed on liability and damages. HELD: (1) The appeal on liability failed; (2) The awards for some of the heads of damages were excessive and the appeal was allowed in part. ORDERS 1. Appeal allowed in part. 2. Judgment for the plaintiff for $544,346 set aside except as to costs. 3. In lieu thereof substitute a judgment for the plaintiff for $441,585 with effect from 21 March 2003. 4. Appeal otherwise dismissed. 5. Appellant to pay one-half of the respondent's costs of the appeal. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40571/03 HANDLEY JA GILES JA HODGSON JA 25 AUGUST 2004 TERESA SKILLIN v MARIA EVELYN HURLEY Judgment 1 HANDLEY JA: This appeal arises out of a rear end collision which occurred at the exit from Woolworth's car park at Parkes on 29 January 1999. The plaintiff, who was in the leading vehicle, alleged that the defendant ran into the back of her vehicle while she was waiting to turn right. The defendant said that the plaintiff's vehicle rolled back and hit her vehicle while it was stationary a short distance behind. The plaintiff sued to recover damages for her personal injuries and English DCJ awarded her $544,346. The defendant has appealed on liability and quantum. 2 The trial Judge accepted the plaintiff's evidence and rejected that given by the defendant and by another witness Mrs Cole. This witness claimed to have seen the accident while she was sitting in a stationary vehicle in the car park. The appeal challenged the Judge's credit based findings on liability. 3 The plaintiff's evidence was supported by a body of circumstantial evidence. The collision was a relatively heavy one. The plaintiff was thrown forward and injured and the defendant said she heard a big bang. Both vehicles, although drivable, were extensively damaged. Repairs to the plaintiff's vehicle cost $1989.84 and to the defendant's vehicle $3198.15. According to the defendant the right hand front side of her vehicle was "all crushed in". 4 The plaintiff's vehicle had stopped with its rear wheels in the gutter and its front wheels on the road as it sloped up towards the centre line. The slope was only 3.8 degrees from the horizontal. Her vehicle had automatic transmission, and the plaintiff said that it was in drive. The defendant said she saw the traffic indicator on the plaintiff's vehicle flashing for a right hand turn and the brake lights were on. According to the defendant she drove her car to a point where its front wheels were on the footpath and its rear wheels were on the exit ramp from the car park so that it was sloping down towards the gutter. 5 The defendant's case was that the plaintiff's vehicle had rolled back and struck the front of her vehicle. If this had occurred the plaintiff's vehicle could not have struck the defendant's with any force given the gentle slope and the short distance between the vehicles. The violence and noise of the impact, and the extent of the damage, suggest the accident probably occurred as a result of the defendant's vehicle running into the back of the plaintiff's. 6 Immediately after the collision the plaintiff got out of her vehicle and spoke to the defendant. They then arranged to proceed to the police station where they reported the accident and completed and signed a P5 form. This corroborated the plaintiff's version of the accident. The defendant said that she signed the form after inserting her personal details without reading the plaintiff's description of the accident. Over the ensuing weekend she said she read her copy of the P5 form and became aware that the description of the accident in it was incorrect. After the weekend she returned to the police station and completed and signed another P5 form which was consistent with her version given at the trial. 7 In my judgment the appellant failed to demonstrate that the Judge's decision on liability was inconsistent with facts incontrovertibly established or was otherwise glaringly improbable. In fact the probabilities strongly support her decision. 8 The defendant relied strongly on what she said was independent evidence from Mrs Cole that she saw the plaintiff's vehicle roll back and hit the defendant's vehicle. The Judge declined to accept this evidence, and said that her relationship with the defendant had coloured Mrs Cole's evidence. It was directly put to her that her evidence was incorrect, and the Judge was entitled to come to the view she did. 9 The defendant relied on other matters of little significance or substance, which need not be mentioned. The Court did not call on counsel for the respondent on this issue. The appeal on liability fails. 10 The Judge's assessment of the plaintiff's damages was as follows: Non-economic loss $101,970 Past out of pocket expenses $30,418 Future treatment expenses $35,000 Past Griffiths v Kirkemeyer $22,271 Future Griffiths v Kirkemeyer $48,761 Past economic loss $70,000 Future economic loss $172,500 Lost superannuation $55,000 Fox v Wood component $8,426 $544,346 11 The amounts for past out of pocket expenses, past Griffiths v Kirkemeyer, past economic loss, and the Fox v Wood component were agreed at the trial. During the hearing of the appeal it became clear that the award for future domestic assistance described as Griffiths v Kirkemeyer was contrary to s 72 of the Motor Accidents Act 1988 as in force at the relevant time and could not be supported. It also became clear that the award for loss of superannuation was excessive and that the correct figure, if the Judge's award for future economic loss was not disturbed, was $26,000. 12 The awards for non-economic loss, future treatment expenses and future economic loss remained in dispute. If the latter award were to be reduced there would have to be a consequential reduction in the award for lost superannuation. 13 The plaintiff was a married woman who was 32 at the date of the accident and 36 at the date of the trial. She was a qualified nurse with a Bachelor of Health Science (Nursing) degree who at the date of the accident was in full-time employment with the Mid-Western Area Health Service. She was employed as a clinical nurse specialist and travelled extensively undertaking assessment of aged patients for placement purposes. Her work did not involve the heavier aspects of nursing required of nurses working in hospitals. She and her husband also ran a hobby farm on 104 acres where they bred rabbits, grew lucerne, and ran sheep. She drove the tractor, assisted with the sheep, sowed oats and assisted with the fencing. 14 Although the plaintiff stated in the P5 form that she was not injured in the accident she had herself admitted to Parkes Hospital the same day for observation and treatment. She was complaining of severe pain in the right side of her cervical spine. A provisional diagnosis of whiplash injury was made. In March 1999 a CT scan was taken which suggested minor disc herniation at the C7/T1 level. In May an MRI showed a minimal posterior bulge of the C6/7 inter-vertebral disc and slight protrusion with a high intensity zone was consistent with an annular tear at the C5/6 level. 15 The award for non-economic loss as based on an assessment of the plaintiff as being 33% of the most extreme case. The Judge implicitly accepted the plaintiff as a witness of truth on issues relating to the reality and severity of her symptoms although she found that there was a component of "over reaction". She briefly reviewed the medical evidence, which was given in report form, and preferred the opinions of the plaintiff's treating doctors and medico-legal specialists. She thought that it was important that most of them had the benefit of seeing the plaintiff more than once. She also referred to the consistency of the plaintiff's complaints and her treatment and mentioned that the plaintiff had been seen by a Dr Connelly on behalf of the defendant but his report had not been tendered. 16 Senior counsel for the appellant challenged the Judge's findings on the medical evidence and said that the Judge had failed to give adequate reasons for her decision on this issue. However the Judge did give reasons for preferring the plaintiff's medical evidence. She also had the benefit of seeing the plaintiff give evidence about her symptoms and her decision on the medical issues must have been influenced by her impressions of the plaintiff. The radiological evidence provided no objective support for the plaintiff's complaints of pain and weakness, and there were no neurological deficits. The highest Dr Fitzsimons put it (blue 50) was that the small annular tear at C5/6 was consistent with her sustaining neck trauma in the accident but it was not itself the cause of her pain and stiffness. Nevertheless there is no basis for disturbing the Judge's findings. 17 The Judge found that the plaintiff sustained a significant injury to her cervical spine which had caused her significant pain and suffering and severely restricted her working, domestic and recreational activities. She accepted the report of Susan Ravagnani (blue 21 & foll) as an accurate account of the plaintiff's difficulties in her domestic and farming activities. These involved pain and restricted movements in her neck and shoulders, headaches, problems with her handgrip, difficulties with sleeping, and difficulties with prolonged standing, sitting, bending and reaching overhead. These matters have caused her difficulties with her farm work, gardening, shopping, housework and driving. The plaintiff lost her driving licence because of her injury and had to re-apply. However because of the problems with her neck she no longer drives a car. 18 Physiotherapy and hydrotherapy have failed to alleviate the plaintiff's symptoms and it was not seriously suggested that surgery would help. Dr Govind thought that diagnostic nerve blocks followed by targeted radiofrequency neurotomy might give the plaintiff pain relief for nine to twelve months, after which the treatment would have to be repeated. However this treatment had not progressed beyond the nerve block tests before the trial. 19 The assessment of 33% is high but in all the circumstances I am unable to find judicially that it is outside the range of a sound exercise of the Judge's discretion. The appeal on this issue must therefore be dismissed. 20 The next issue relates to the cost of future medical treatment for which the Judge allowed $35,000. She said that this was based on the plaintiff's need for diagnostic nerve blocks and radiofrequency neurotomy as recommended by Dr Govind and Dr Fitzsimons and the cost of ongoing medical consultations and pain relieving medication. 21 Dr Fitzsimons in his report of 20/9/01 said (blue 50) that the nerve block tests that the plaintiff was then undertaking were justified. In his further report of 25/10/02 he said that the investigations referred to by Dr Govind in his reports of 9/4/02 and 16/8/02 indicated that radiofrequency ablation of the nerve of the right side of the C3/4 zygapophyseal joint was justified (53). He said that if successful this procedure might have to be repeated annually over a number of years. 22 Dr Govind first recommended this procedure in his report of 9/3/01 (blue 57). His report of 9/4/02 stated that some diagnostic nerve blocks had already been undertaken at Royal Newcastle Hospital (62-3) but they were incomplete (63). As at 16/8/02 the remaining tests had still not been undertaken (65). The plaintiff's chronology disclosed that further diagnostic nerve blocks were performed by Dr Govind on 19 September and 3 October 2002 (blue 163). The trial began on 11 November. 23 The plaintiff did not give oral evidence about the results of these further nerve blocks and was not asked any question about this treatment in chief or in cross-examination. Dr Fitzsimons' second report of 25 October postdated the last two tests but he said nothing about them. Dr Govind could have reported on the results of those tests and his report could have been served at the same time as Dr Fitzsimons' report of 25 October so as to be available for tender at the trial. This was not done. Presumably the cost of these tests was included in the agreed past out of pocket costs. 24 The plaintiff had the onus of proving her damages, although strictly future expenditure is recoverable as damages for the chance that it will be incurred in accordance with the principles in Malec v J C Hutton Pty Ltd (1990) 169 CLR 638. 25 These tests may have indicated that radiofrequency neurotomy would probably successfully alleviate the plaintiff's symptoms allowing her to lead a normal life and return to her former job as a specialist nurse. If that had been established she may have been entitled to an even higher award to pay for the cost of this ongoing treatment, but her awards for non-economic loss and future economic loss would probably have been substantially reduced. 26 On the other hand these tests may have indicated that this treatment was not likely to help this plaintiff. In that event she would be entitled to retain the damages awarded for non-economic loss and for future economic loss but would not be entitled to retain this award for the future cost of such treatment. What is quite clear is that she is not entitled to retain all three of these awards. In my judgment the appropriate course is to set aside this part of the award, reassess, and substitute an award of $10,000 as suggested by the appellant. 27 The last award that is directly challenged is that for future economic loss. The Judge's findings relevant for this purpose include the following. The plaintiff had made genuine attempts to rehabilitate herself and regain employment in both nursing and clerical work, but nursing was now beyond her capacity. She had undertaken training to enable herself to re-enter the workforce at a level commensurate with her disabilities. It was more probable than not that she would secure a position within her capacity resulting in a continuing wage loss as compared to a tertiary qualified specialist nurse. The Judge awarded the sum of $172,500 under this head which reflected a deduction of 15% for vicissitudes. 28 This award translated into a wage loss of $250 net per week. 29 The plaintiff's claim for future economic loss was based on the report of Asquith Trottman & Spence of 10 October 2001 (blue 112 & foll). The plaintiff's net earnings as a specialist nurse at the date of trial were not less than $652 per week (118) (not $615 per week as suggested in the appellant's written submissions (orange 21)). On this basis the imputed loss of $250 per week in her earning capacity translates into a retained capacity of 38% and a loss of 62% before any allowance for contingencies. The appellant contended that the award was appelably excessive and submitted that it should be reduced to $100,000. 30 There was evidence in the plaintiff's chronology that she had had casual secretarial work as a doctor's receptionist and at Eugowra Sawmill on various days during the months from August to the trial (orange 34-5). There was no documentary evidence of her earnings in these employments, but she said that she earned between $15 and $18 an hour for 1½ to 2 days a week (black 16). Presumably these were net rates and the days were normal eight-hour days. She said she could manage this amount of work and thought she could actually do this work for three days a week (17). 31 Three eight-hour days a week at $15 an hour represents earnings of $360 per week, for a weekly loss of $292 compared with her earnings as a specialist nurse. At the higher rate of $18 an hour her earnings for three days a week would be $432, for a weekly loss of $220. If the hourly rates are averaged the weekly loss becomes $256 a week. 32 This analysis demonstrates that her Honour's award was fairly based on the evidence and was by no means excessive, given her finding on the plaintiff's credit and the medical issues. The appellant has failed to establish any basis for disturbing this award consistent with the Judge's findings on those issues and in this respect the appeal must be dismissed. 33 The appellant failed on the issue of liability but has succeeded in reducing the judgment by $102,761 on three heads of damage which were not the subject of major contest. The challenges to the major awards for non-economic loss and future economic loss failed. The bulk of the time in the appeal was taken up with the issue of liability. In these circumstances the appellant should pay one-half of the respondent's costs of the appeal. The following orders should be made: 1. Appeal allowed in part. 2. Judgment for the plaintiff for $544,346 set aside except as to costs. 3. In lieu thereof substitute a judgment for the plaintiff for $441,585 with effect from 21 March 2003. 4. Appeal otherwise dismissed. 5. Appellant to pay one-half of the respondent's costs of the appeal. 34 GILES JA: I agree with Handley JA. 35 HODGSON JA: I agree with Handley JA. ********** Last Modified: 08/25/2004 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.