New South Wales Court of Appeal CITATION : Coleman & Anor v Barrat [2004] NSWCA 27 HEARING DATE(S) : 12/08/04 JUDGMENT DATE : 23 November 2004 JUDGMENT OF : Sheller JA at 1; Beazley JA at 2; Gzell J at 6 DECISION : Appeal allowed in part. Non-economic loss assessed at 22%. Verdict reduced to $45,400 plus interest. CATCHWORDS : ANIMALS - Liability of Owners and Keepers in respect of injuries by animals - Companion Animals Act 1998, s 25 - Indirect wounding caused by dog - DAMAGES - Non-economic loss at 30% of a most extreme case eroneous Companion Animals Act 1998 (NSW) LEGISLATION CITED : Civil Liability Act 2002 Suitors' Fund Act 1951 Eadie v Groombridge NSWCA (1992) 16 MVR 263 Zappia v Allsop NSWCA (unreported, 17 March 1994) Crump v Sharah [1999] NSWSC 884. [27]-[40] Devries v Australian National Railways Commission (1992-1993) 177 CLR 472 at 479 Fox v Percy (2002-2003) 214 CLR 118 at 127 CASES CITED : Eadie v Groombridge (1992) 16 MVR 263 Southgate v Waterford (1990) 21 NSWLR 427 Woolworths Ltd v Lawlor [2004] NSWCA 209 Kurrie v Azouri (1998) 28 MVR 406 Moran v McMahon (1985) 3 NSWLR 700 The Owners - Strata Plan 156 v Gray [2004] NSWCA 304 Video Excellence Pty Ltd v Cincotta (1998) 44 NSWLR 742 PARTIES : Ian Lyle Coleman and Coleman - Appellants Margaret Mary Barrat - Respondent FILE NUMBER(S) : CA 40978/03 COUNSEL : Mr A C Bridge SC/ S Kettle - Appellant Mr D Jenkins - Respondent SOLICITORS : Thompson Cooper Lawyers - Appellants Phil Harris Solicitor - Respondent LOWER COURT District Court JURISDICTION : LOWER COURT DC 86 of 2002 FILE NUMBER(S) : LOWER COURT McLoughlin DCJ JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40978/03 DC 86/2002 SHELLER JA BEAZLEY JA GZELL J TUESDAY 23 NOVEMBER 2004 IAN LYLE COLEMAN & ANOR v MARGARET MARY BARRAT All parties reside in Moonbi, a village outside Tamworth. Ms Barrat (the plaintiff/respondent) was riding her horse at about 5pm on 22 September 2000, when a dog ran across the street, barking, in front of her and the horse. The horse shied away from the dog, radically changing its travel direction, and the respondent was thrown to the ground and sustained substantial injuries to her left wrist, left elbow, left shoulder blade and to her neck. The dog was seen to have emerged from bushes on the footpath outside the house across the street, in which Mr and Mrs Coleman (the appellants) resided. The appellants own a fox terrier of a similar description. The respondent's riding companion gave evidence that he had seen the appellants' dog in similar locations during their previous horse-riding trips on at least six occasions, and that it was the same dog on this particular afternoon. The trial judge found that the appellants were the owners of the dog, whose behaviour caused the accident, and that the appellants were liable for the respondent's injuries, firstly under the Companion Animals Act 1998, and secondly in negligence. His Honour assessed non-economic loss at 30% of a most extreme case. These findings are challenged on appeal. HELD per GZELL J (with whom SHELLER JA agrees): (i) The trial judge was correct in concluding that the dog was owned by the appellants, and that the dog indirectly caused a wounding of the respondent: s 25 Companion Animals Act 1998 (NSW); Eadie v Groombridge NSWCA (1992) 16 MVR 263; Zappia v Allsop NSWCA (unreported, 17 March 1994); Crump v Sharah [1999] NSWSC 884. [27]-[40] (ii) I find it is therefore unnecessary to determine whether or not the appellants were liable under the tort of negligence, as liability is already clearly established. [41] (iii) I do find, however, that the trial judge's assessment of the respondent's non-economic loss is, at 30% of a most extreme case, exaggerated and erroneous (see paras [45]-[69]), and I assess her non-economic loss to be at 22% of a most extreme case. The amount awarded to her should be adjusted accordingly (and interest recalculated). [70]-[71] (iv) Appeal allowed in part, as above. HELD per BEAZLEY JA: (i) Although I agree with Gzell J with respect to his findings as to causation and liability, in my opinion however the trial judge did not err in his assessment of 30% of a most extreme case for non-economic loss. I agree with the trial judge that this assessment is within the appropriate discretionary range, and therefore I would dismiss the appeal with costs. ORDERS Appeal allowed in part. Amount of the verdict set aside and judgment entered for $45,400 together with interest to be recalculated by the parties who should bring in short minutes of orders reflecting this judgment within 48 hours. Ms Barrat to pay Mr and Mrs Coleman's costs of the appeal. Ms Barrat to have a certificate under the Suitors' Fund Act 1951 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA40978/03 DC 86/2002 SHELLER JA BEAZLEY JA GZELL J TUESDAY 23 NOVEMBER 2004 IAN LYLE COLEMAN & ANOR v MARGARET MARY BARRAT Judgment 1 SHELLER JA: I agree with Gzell J. 2 BEAZLEY JA: In this case I have had the advantage of reading in draft the judgment of Gzell J. I agree with his Honour's conclusions except in relation to damages. 3 The respondent suffered extensive injuries in the accident. Gzell J has referred to them in full in his reasons. In particular, she has a significant chance of developing osteoarthritis and has ongoing pain and limitation of certain basic activities. These limitations have a significant impact on her. 4 In my opinion, an assessment of 30% of a most extreme case for non-economic loss was not outside an appropriate discretionary range. Although the assessment was towards, if not at the top of an appropriate range, being at the top of a range does not make an assessment appealably wrong. 5 I would dismiss the appeal with costs. 6 GZELL J: At about 5 pm on a Spring evening in Moonbi, a village close to Tamworth, the respondent, Margaret Mary Barrat, had just commenced to canter her horse along the grassy verge of a street when a dog ran across the street at her horse, barking. Ms Barrat's horse shied, she was thrown to the ground and sustained a fracture of her left wrist, a fracture of her left elbow joint, a possible fracture of her left shoulderblade and a soft tissue injury to her neck. 7 The appellants, Mr and Mrs Coleman, owned the house across the street from where Ms Barrat fell. The dog was seen to emerge from bushes on the footpath outside their house. Mr and Mrs Coleman owned a miniature fox terrier of similar description to the dog in question. Judge McLoughlin found it was the Coleman dog that caused the incident. He found Mr and Mrs Coleman liable for Ms Barrat's injuries under the Companion Animals Act 1998 and in negligence. For non-economic loss, his Honour assessed the plaintiff at 30% of a most extreme case. These findings constituted the four issues on appeal. Identity of dog 8 Ms Barrat said she saw a black and white terrier emerge from a bush on the footpath at the corner of the chain wire fence that surrounded Mr and Mrs Coleman's yard. She did not see where the dog went after it ran under her horse. 9 Ms Barrat was riding with her companion, Mr Miners. He had on at least half a dozen occasions prior to the incident walked past Mr and Mrs Coleman's house and seen their dog running up and down the yard inside the fence barking at passers by. Mr Miners was riding behind Ms Barrat. As he turned the corner into the street, he saw the dog on the footpath outside Mr and Mrs Coleman's house as it crossed the road and, in his words, "attacked" Ms Barrat's horse. Mr Miners said he recognised the dog as the one he had seen in Mr and Mrs Coleman's yard. After Ms Barrat fell from her horse, Mr Miners saw the dog turn back towards the Coleman's house. 10 Mr Miners was familiar with two miniature fox terriers owned by a Mr Hunt. He said they were smaller. He said he knew these dogs and could not have been confused that one of them was the dog involved in the incident. He had observed the dogs outside Mr Hunt's house which was about five blocks away from where the incident occurred. 11 Two to three months after the incident, Mr Miners and Ms Barrat returned to the scene where Mr Miners took a number of photographs of the Coleman's dog. Ms Barrat identified the photographed dog as the one that had run at her horse. She said she had a sufficient glimpse of the dog to know it was the one photographed. 12 Judge McLoughlin accepted this evidence. He found Ms Barrat and Mr Miners to be witnesses of honesty. He found her, on demeanour, to be a person whose word he had no hesitation in accepting. He found, similarly, with respect to the evidence of Mr Miners. He rejected the evidence of Mr and Mrs Coleman who said the dog was inside and under the dining room table at the time. He found that both Mr and Mrs Coleman had reconstructed the events of the day and that with their pre-occupation in viewing the Olympic games on television, a gate or door had been left ajar allowing the dog to escape, notwithstanding their usual vigilance. 13 Counsel for the Coleman's accepted that since the trial judge had made findings of fact based on the credibility of witnesses, his findings could not be set aside unless he had failed to use, or had palpably misused his advantage, had acted on evidence that was inconsistent with facts incontrovertibly established by the evidence, or which were glaringly improbable (Devries v Australian National Railways Commission (1992-1993) 177 CLR 472 at 479, Fox v Percy (2002-2003) 214 CLR 118 at 127). 14 From the Coleman's house there was a security door exit to the street and an exit from the interior to an enclosed verandah and a further exit from the verandah to the street. There was also a door from the house to an enclosed yard. From the enclosed yard there were four exits to the street. The evidence was, and the primary judge accepted, that each of the exits was normally closed and the Coleman's were vigilant in this respect. 15 There was a deal of evidence from neighbours and acquaintances that the dog had not been seen outside the enclosed yard. It was submitted that the evidence supported a finding that the Coleman premises were "dog-proof" and theirs could not have been the dog involved in the incident. 16 The security of the various exits from the premises was only peripherally relevant, for the case on behalf of the Coleman's was that their dog was inside the house and Ms Barrat and Mr Miners must have been mistaken as to the identity of the dog involved in the incident. 17 There is no suggestion that the trial judge misused his advantage in resolving the conflict in the evidence before him. Nor is there an inconsistency with incontrovertibly established facts. The evidence that nobody had seen the Coleman dog outside the yard, does not establish his incarceration in the premises as an incontrovertible fact. If the trial judge was entitled to accept the evidence of Ms Barrat and Mr Miners it must follow that the Coleman dog had inadvertently escaped from the house and yard. 18 Nor was the evidence that Judge McLoughlin accepted, glaringly improbable. Mr Miners had no difficulty distinguishing the miniature fox terriers of Mr Hunt. His evidence was supported by Mrs Avery who lived across the street from the Coleman's. Mrs Avery said that one of Mr Hunt's dogs was old and did not wander. The younger fox terrier wandered and was similar to the Coleman dog. She said the Coleman dog was a lot bigger but at the time it was only a couple of years old and was still small. In this respect the trial judge found that she was mistaken and the dog was three years old at the time. Mrs Coleman agreed that their dog was larger than Mr Hunt's fox terriers. 19 There were inconsistencies in the testimony of Mr and Mrs Coleman. Mr Coleman asserted that sitting at the dining table he observed Ms Barrat with her arms around the neck of horse about to fall off it. Ms Barrat was an experienced horsewoman who had competed in horse riding events since a child. She and Mr Miners denied that she lost control of the horse before the incident or that she had her arms around its neck. From where he sat at the dining room table, Mr Coleman's vision was obstructed and he could not have seen Ms Barrat commence to fall. 20 There was some confusion as to whether Mrs Coleman saw the dog under the dining room table and where it was when the Coleman's entered the enclosed verandah. Mrs Coleman said they remained in the verandah from where they viewed the aftermath of Ms Barrat's fall from her mount. Mr Coleman said he opened the front door into the yard. 21 Mrs Coleman said their dog was a house dog normally positioned under the dining room table that only infrequently went outside. Mrs Avery said it commonly ran up and down the front fence barking, protecting its yard. She said if a fly went in the Coleman yard, the dog would bark. She described the Coleman dog as "a really yappy dog". Mr Coleman agreed that they had a yappy dog that exhibited a lot of barking at times, up and down the front fence. 22 Mrs Coleman said when she saw Ms Barrat she was sitting on the road holding her arm with a male standing beside her. She saw no horse. Mr Coleman said that Ms Barrat was sitting on the ground and a man holding a horse was standing by her. Mr Coleman agreed that he had no independent recollection of seeing the dog under the table. His Honour asked: "Q: Mr Coleman, do you have any real memory of your dog movement or is that normally what you would do? A: That's what we normally would do yeah." 23 But to a large extent the trial judge relied upon his assessment of the demeanour of the witnesses. He had that advantage and was entitled to do so. 24 In my view no appealable error has been demonstrated. It was unnecessary for Ms Barrat to establish how the dog escaped from the Coleman premises. It was sufficient for her case that she and Mr Miners identified the dog involved in the incident as that of the Coleman's. 25 Judge McLoughlin said: "I find it unusual that a person such as Mrs Coleman, being aware that the plaintiff had fallen from her horse and was on the ground holding her arm, did not at least proffer some assistance or inquiry as to how she was when she was in close proximity to Mrs Coleman's home. I do not accept Mrs Coleman's version that she did not do this because there seemed to be no sign of distress or anxiety from the distance that she was observing. The fact that a person had fallen from a horse and was holding one's arm would give an indication that there was something wrong and I would have thought that Mrs Coleman would have been the person who would have proffered some assistance if she had not felt some guilt at that time." 26 There was no justification for his Honour's observation. It does not, in my view, alter the position that his Honour accepted the evidence of Ms Barrat and Mr Miners based on the demeanour of both witnesses before him. Statutory liability 27 The Companion Animals Act 1998, s 25 provides an absolute liability in an owner of a dog that wounded or attacked a person. Relevantly, it provided: "(1) The owner of a dog is liable in damages in respect of: (a) bodily injury to a person caused by the dog wounding or attacking that person, and (b) damage to the clothing of a person caused by the dog in the course of attacking that person." 28 Ms Barrat described the approach of the dog thus: "I saw a black and white terrier type dog approach furiously at me from a bush on the corner of that fence which is in the diagram, the wire fence, and the dog came attacking me and the horse, barking and barking and carrying on and jumping and coming as fast as he possibly could." 29 She said she lost sight of the dog when it ran right under the horse. The horse jumped completely sideways and she was dislodged. She rolled away from the horse, concerned that it might kick her. She was asked how she would describe the barking of the dog. She said: "He was viciously, ferociously, barking. Yap, yap, yap, yap, yap, yap". She fell onto her left hand. After a few seconds, she said she stood up. She said Mr Miners caught her horse and rode back to her. She told him she had broken her arm and needed to go to the hospital. She said she could walk back to their house. Mr Miners rode ahead and took the horses home. 30 Mr Miners said the dog was barking and rushing at the horse. It raced barking right up under Ms Barrat's stirrup and then the horse flew to the right and Ms Barrat fell. He said he rode up to her and she said she had broken her arm and asked him to get her horse. Having gathered her horse, she returned to Ms Barrat. He took the horses back home and she walked. 31 Judge McLoughlin accepted this evidence. He found it consistent with Mrs Avery's description of the dog yapping and running up and down the fence and of Mr Miners' observation of it on the occasions he had walked past the house. 32 In Eadie v Groombridge (1992) 16 MVR 263 a dog ran parallel with a motor cycle and then turned into it causing the rider to swerve unsuccessfully to miss the dog and to fall to the ground and sustain injuries. A majority of this Court concluded that this constituted an attack and a wounding for the purposes of the predecessor to the current statutory provision. At 264, Meagher JA said that the fact, accepted by the trial judge, that the dog came at the rider, proved attack and the breaking of the plaintiff's skin proved a wounding, even if the dog did not lacerate the rider's flesh. In his Honour's view, a wounding that was an indirect result of an attack by a dog fell within the section. 33 In Zappia v Allsop, unreported, NSWCA, 17 March 1994 a dog ran at two bicycles, ultimately crashing into the rear of one, causing the rider to be thrown to the ground and knocked unconscious. This court held that the charging of the dog at the bicyclist, growling and barking, established an attack. The majority rejected the submission that the element of wounding required direct contact between the dog and the person. The majority saw no reason, in principle, why an owner should be liable if his or her dog directly wounded a person, but not liable if a person evaded a direct wound and thereby sustained another and more serious injury. 34 In Crump v Sharah [1999] NSWSC 884 the plaintiff was riding her horse when two dogs came out barking and started to nip at the hocks of the horse which veered across the road and bucked, throwing the plaintiff to the ground hitting her head and breaking her left collar bone. Davies AJ concluded that actual contact was not necessary to establish an attack. It was sufficient that the dogs joined in barking at the horse and one of them, at least, had nipped at its hocks. His Honour also concluded that a wounding directly inflicted by a dog was not necessary to invoke the forerunner to the current statutory provision; an injury suffered by a person as a result of an act of aggression by a dog was sufficient. 35 It was submitted there was no evidence that Ms Barrat's horse was bitten or wounded by the dog or that the dog posed a real threat to the horse or rider beyond that of being a nuisance. 36 The forerunner to the present provision was the Dog Act 1966, s 20 which, relevantly, was as follows: "(1) Subject to subsection (2), the owner of a dog shall be liable in damages in respect of: (a) bodily injury to a person caused by the dog wounding that person; and (b) damage to the clothing of a person caused by the dog, in the course of attacking that person." 37 With respect to personal injuries, the present section visits liability upon a dog owner for an attack or a wounding. The dual elements of wounding in the course of an attack are no longer required. 38 Counsel pointed to s 27(1) of the Companion Animals Act 1998 which provided that the owner of a dog was liable in damages in respect of injury (whether or not fatal) to another animal (whether or not a dog but other than vermin) caused by the dog attacking or chasing it. It was submitted, correctly in my view, that there was a dichotomy between attacking and chasing and the latter was not sufficient to invoke liability under s 25. 39 In my view the trial judge was correct in concluding that the dog indirectly caused a wounding of Ms Barrat. She sustained the fractures to her wrist, elbow and possibly her shoulderblade as a result of being unseated from the horse due to the aggression of the dog. That finding was sufficient to enliven liability under the Companion Animals Act 1998 and it is, strictly, unnecessary to consider the dichotomy between attacking and chasing. 40 For the sake of completeness, the manner in which the dog approached Ms Barrat's horse was not, in my view, an act of chasing the horse. The dog ran across the road at the horse. It did not run behind and follow the horse which is a characteristic of chasing that immediately comes to mind. There was no pursuit of the horse. Furthermore, I am of the view that the actions of the dog constituted an attack. Nipping at the horse's hocks was not necessary. It was sufficient that the dog ran at the horse, at Ms Barrat's stirrup and under the horse, yapping aggressively. Negligence 41 It is unnecessary to determine whether Judge McLoughlin was correct in his conclusion that Mr and Mrs Coleman were guilty of negligence. His Honour found that the dog should have been chained, confined to an enclosed run within the fence, or Mr and Mrs Coleman should have been ultra-cautious to ensure that gates were not left open. 42 In my view, there was no requirement to chain the dog. If doors and gates were closed, it was confined in the house and yard and the additional precaution of chaining was not necessary. Nor does it seem to me appropriate for the dog to have been confined within a run in the yard. The perimeter fencing served the same purpose provided the gates and doors were secure. 43 While some of the gates and doors had self-closing devices fitted to them, others did not. One gate in the perimeter fence had a piece of wire through the latch that could be removed to open the gate. Since the incident, a chain and lock have been placed on the double gates in the perimeter fence. 44 It seems to me that Judge McLoughlin might have based a finding of negligence on the failure of Mr and Mrs Coleman to ensure that all gates and doors, if not chained and locked, were fitted with self-closing devices. Some support for that view is to be found in Eadie where all members of this Court, in the circumstances of that case, concluded that the absence of installation of such devices constituted negligence. Non-economic loss 45 The plaintiff was born on 31 January 1949. She was 51 at the time of the accident. She commenced horse riding at the age of 5 or 6 and continued with an active involvement in horse riding until the accident. Since then she has lacked confidence and had not ridden since. She was diagnosed with Paget's disease in 1996 and in 1998 was diagnosed as suffering from multiple sclerosis. Her symptoms from the latter disease were in remission at the time of the incident. Ms Barrat ceased to compete in horse riding events in 1998. Massive doses of cortisone for her multiple sclerosis caused her to put on approximately three stone in weight so that she was not terribly athletic but she could still trot and canter a horse. Ms Barrat was right-handed. 46 A closed reduction of the left arm and its encasement in plaster was performed at Tamworth base Hospital and Ms Barrat was discharged. She returned a few days later when the plaster was adjusted. For the four to six weeks that her arm was in plaster she suffered headaches, pain and a sore neck which substantially resolved over a few weeks. 47 Ms Barrat had been on a disability pension for three years prior to the accident. Shortly before the accident she had engaged in part time work. She returned to her job a fortnight after the accident. She subsequently obtained a full-time position with a firm of solicitors and continued to work for them until 6 June 2003 when pain in her neck from the use of computers and the swelling of her left hand from continual typing became too much for her. Her Paget's disease prevents her from sitting or standing for long periods. She said it was almost impossible for her to sit for an entire day typing on a keyboard. 48 Ms Barrat said that she also had pain in the shoulder, pain in the elbow and in the left arm. She couldn't straighten her left arm and if she did any extended type of housework, her hand became very sore and the wrist tended to swell a little. The strength of her left arm was reduced in comparison with her right. She had difficulty holding bottles and jars with her left hand to open them with her right hand. She said her wrist was pain free at times but if she over-exerted herself it became painful. She had a manual motor vehicle but found it difficult to change gears and she acquired an automatic vehicle. Ms Barrat took a celebrex tablet every day for all her symptoms and in winter when her arm and shoulder became sore she took two Panadol tablets at night. 49 Ms Barrat and Mr Miners were involved in Country and Western music. They performed gigs at local venues. She had no trouble singing and she could play a keyboard for about 40 to 45 minutes and then required a break of about an hour to an hour and a half before another sequence. She thought she spent about 12 hours a week in this activity. 50 Ms Barrat said she had Paget's disease in the right occipital area, in the mid-left thoracic region, both sides of her ribs, in the pelvic area, both hips, a touch in the right thigh, in the left lower leg and in the right collar bone. Ms Barrat agreed that she had had episodes of double vision and numbness of her limbs prior to the accident. As well as the multiple sclerosis, Ms Barrat suffered from asthma. 51 Dr Clery, an orthopaedic specialist, saw Ms Barrat in May 2001. He formed the opinion that she suffered a soft tissue injury to her neck, a possible fracture of her left scapula, a fracture of the coronoid process of her left ulna and a fracture of the lower end of the left radius involving the joint surface. 52 Of the neck, Dr Clery said there were pre-existing changes in the cervical spine that were causing pain and limitation of movement prior to the accident and that these pre-existing changes were aggravated by the fall and this increased the amount of pain and stiffness. He did not think that any treatment was required. He said her prognosis was for slow deterioration in the pre-existing degenerative changes. He expressed the opinion that 50% of the neck impairment was due to the pre-existing changes. 53 The doctor said that if Ms Barrat had a fracture of the left scapula, it had healed. He thought she had sustained a soft tissue injury to the shoulder involving the capsule. No treatment was required and Dr Clery saw no change in the condition of her shoulder in the future. 54 Dr Clery said the fracture of the coronoid process had healed and was not causing any on-going problems. He did not think that any treatment was required, he saw no change in the condition of her elbow in the future and he did not think that osteoarthritis would set in. 55 Of her comminuted wrist fracture, Dr Clery said that 30 % of such patients went on to develop osteoarthritis six years after the injury. He said there was a significant risk of osteoarthritis developing in Ms Barrat's wrist. He did not believe that any treatment to the wrist was required but if osteoarthritis occurred, it was likely that operative treatment would be needed. The doctor did not believe Ms Barrat required general practitioner or specialist consultations or physiotherapy and the only medication required was an occasional analgesic tablet. 56 Dr Clery assessed Ms Barrat as suffering from a permanent whole person impairment of 25% excluding an amount for the pre-existing condition in her neck. 57 Dr Cleary saw Ms Barrat again in May 2003. He said his opinion remained as he had previously expressed it. He said that a small lump in the palm of Ms Barrat's left hand was due to the development of Dupuytrens nodules. He did not expect this to progress or to cause any on-going problem. It was, in his opinion, due to the fracture of the lower end of the radius. Dr Clery suggested two to three nine hour sessions of physiotherapy per year for two to three years for Ms Barrat's neck and a very occasional short course of physiotherapy for her shoulder. 58 Dr Fry, a surgeon, also saw Ms Barrat in May 2003. He expressed the view that the proximal left ulna fracture would not normally be expected to produce any dramatic or obvious development of osteoarthritis in the main elbow joint. The fracture of the head of the radius might possibly hold some increased likelihood of osteoarthritis in the superior radio-ulna joint rather than the elbow joint as a whole. The doctor said this was unpredictable. He said the distal radial fracture was comminuted and involved the joint and this incurred an increase likelihood of an acceleration of the development of osteoarthritis. The distal radio-ulna joint underwent some disruption as the ulna head was not in its original position and the ulna styloid had been torn off the bone. Ms Barrat was tender over the scaphoid area so that the possibility of ligamentous rupture needed to be excluded. She had two suspect structures, triangular fibro cartilage binding the radius and the ulna together and the scapho-lunate ligament binding the scaphoid and the lunate bones together. He said if she remained symptomatic or if she became worse, wrist arthroscopy should be considered. 59 Dr Fry said that Ms Barrat exhibited symptoms suggesting carpal tunnel syndrome and it should be investigated. If she did have this condition it was as a result of the accident and not as part of her multiple sclerosis. Her stiff wrist and wrist pain were also the result of her accident and not due to her Paget's disease. Ms Barrat had tender muscles on the left with a suggestion of this on the right which Dr Fry said was almost certainly due to muscular overuse, quite separate from her wrist pain and probably related to her typing. A bursa over the point of the elbow was likely to be accident related and could be excised by her orthopaedic surgeon. If she proved to have carpal tunnel syndrome, the nerve would require surgical decompression. 60 Muscular overuse would respond to avoidance of pain causing activities but nothing else. Her wrist pain, Dr Fry said, should be treated by moderation of her activities to make sure that she did not involve the hand in any activity which caused her pain. Dr Fry expressed the view that her work involving typing should be moderated so that she did not get to the point of having to stop because of pain. On an arbitrary scale of nil, minimal, mild, moderate, severe and extreme, Dr Fry rated her loss of industrial capacity for typing as a paralegal as high moderate. 61 Rebecca Wolfgang, an occupational therapist, also saw Ms Barrat in May 2003. She expressed the view that Ms Barrat was not fit to undertake her current workload involving 80-90% computer/keyboard tasks and that she should make arrangements to perform a computer related workload at 50-60%. 62 Dr Bodel, an orthopaedic specialist, saw Ms Barrat in February 2003. He expressed the view that her clinical condition was static and he saw no further specific treatment for her left arm injury. He saw no need for surgery and did not expect that it would be required in the future. He took the view that Ms Barrat was fit to carry out her normal work in a solicitor's office until normal retirement age, although her multiple sclerosis might be a longer term factor in her employability. 63 Non-economic loss is defined in the Civil Liability Act 2002, s 3 as pain and suffering, loss of amenities of life, loss of expectation of life and disfigurement. Section 16(3) is like the Motor Accidents Act 1988, s 79A. It requires a judge, if the severity of the non-economic loss is equal to or greater than 15% of a most extreme case, to determine the severity of the non-economic loss as a proportion of the non-economic loss of a most extreme case. 64 It has been said that the task under such legislation involves reaching a point where further reasoning is impossible and it is necessary to make a determination which is insusceptible to entirely logical exposition (Southgate v Waterford (1990) 21 NSWLR 427 at 442) and that the assessment of general damages is an evaluative process in respect of which minds may reasonably differ (Woolworths Ltd v Lawlor [2004] NSWCA 209 at [14]). 65 Nonetheless, the statute requires a comparison to be made of the non-economic loss suffered by a plaintiff against the non-economic loss in a most extreme case. The statute does not require the comparison to be made against the most extreme case imaginable. In Kurrie v Azouri (1998) 28 MVR 406 at 413, Sheppard AJA said: "The expression 'a most extreme case' requires some discussion. It enables one to provide oneself with a yardstick as to what the legislature had in mind. A court considering the question will need to contemplate what in practical terms is embraced by 'a most extreme case'. Immediately one considers such a case, one thinks of cases of quadriplegia, perhaps some serious cases of paraplegia, cases of serious brain damage and, perhaps, some cases of extremely serious scarring and disfigurement caused, especially to young children, by scalding or burning. No doubt there are others." 66 In the present case, that task may be undertaken by considering the non-economic loss Ms Barrat might have suffered had she been rendered a quadriplegic by her fall. The loss of amenities of life in such a case, in particular, would far outweigh her actual impairment, serious though it be. She is clearly far better off than a person who sustained a high level amputation of an arm. Being right handed, she is far better off than she would have been had she fallen on her right hand. 67 An appeal from an assessment of damages by a judge sitting without a jury raises the same principles as when an appeal is brought from the exercise of discretion by a trial judge: an appellate court must be satisfied that a wholly erroneous estimate of damage has been made by the trial judge (Moran v McMahon (1985) 3 NSWLR 700) or that the assessment is so unreasonable and plainly unjust that it must be inferred that in some way the trial judge failed properly to exercise his or her discretion (The Owners – Strata Plan 156 v Gray [2004] NSWCA 304 at [41]). 68 Bearing in mind Ms Barrat's previous disabilities, that 50% of the problems associated with her neck are attributable to the accident, the lack of requirement for other than physiotherapy treatment save for Celebrex and Panadol, the limitation of future treatment to rectification of a possible case of carpal tunnel syndrome, the removal of a bursa at her elbow and surgical intervention in the event of the likely acceleration of osteoarthritis in her wrist, her continued capacity to work with some reduction in keyboard typing to relieve strain, her ability to continue with her musical performance with breaks; her undoubted pain and suffering from her wrist, arm, shoulder and neck, her limitation of performing chores such as opening bottles and jars, her lack of confidence in resuming non-competitive horse riding and the restriction in her capacity to perform all the duties required of her as a legal secretary, justify no more than a proportion slightly above 20% of the non-economic loss of a most extreme case. 69 In my view, his Honour's assessment of 30% was a wholly erroneous estimate and so unreasonable and plainly unjust that it should be inferred that in some way his Honour failed properly to exercise his discretion. I would substitute a 22% proportion. 70 The schedule to s 16 of the Civil Liability Act 2002 at the time of the appeal is the determinative one (Video Excellence Pty Ltd v Cincotta (1998) 44 NSWLR 742 at 745). That, we were told, is the schedule as from 1 October 2003. An assessment of 22% of a most extreme case gives an entitlement of 4.5% of $384,500, namely, $17,500 rounded to the nearest $500. The amount awarded for non-economic loss should be reduced from $88,500 to $17,500 and the judgment should be reduced from $116,400 to $45,400. This change will result in a need for a recalculation of interest. 71 In my opinion the appeal should be allowed in part. The amount of the verdict should be set aside and judgment should be entered for $45,400 together with interest to be recalculated by the parties who should bring in short minutes of orders reflecting this judgment within 48 hours. Ms Barrat should pay Mr and Mrs Coleman's costs of the appeal. Ms Barrat should have a certificate under the Suitors' Fund Act 1951. ********** I Last Modified: 12/07/2004 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.