New South Wales Court of Appeal CITATION : O'Sullivan v Clark [2004] NSWCA 129 revised - 10/05/2004 HEARING DATE(S) : 20/4/04 JUDGMENT DATE : 30 April 2004 JUDGMENT OF : Ipp JA at 1; Stein AJA at 2 DECISION : 1. Appeal allowed with costs; 2. Respondent to receive a certificate under the Suitors Fund Act 1951 if otherwise entitled; 3. The Verdict and judgment of $168,745.68 is set aside and in substitution therefor a verdict and judgment be entered for the appellant in the sum of $201,302.68 CATCHWORDS : Personal injuries in motor accident-damages under all heads inadequate-non-economic loss- economic loss- superannuation LEGISLATION CITED : Motor Accidents Act 1988 PARTIES : Kylie Peta O'Sullivan: Appellant Ann Margaret Clark: Respondent FILE NUMBER(S) : CA 40536/03 COUNSEL : D.G. Nock SC for the Appellant S. Mc Carthy/C.Hickey for the Respondent SOLICITORS : Saunders & Stunden Solicitors for the Appellant Ferguson Holz Solicitors for the Respondent LOWER COURT District Court JURISDICTION : LOWER COURT 1570/01 FILE NUMBER(S) : LOWER COURT Delaney DCJ JUDICIAL OFFICER : - 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40536/03 DC 1570/01 IPP JA STEIN AJA 30 April 2004 KYLIE PETA O'SULLIVAN -V-ANN MARGARET CLARK JUDGMENT 1 IPP JA: I agree with Stein AJA. 2 STEIN AJA: Introduction This is a quantum appeal by a plaintiff. The trial judge gave judgment for the appellant, Kylie Peta O'Sullivan, in the sum of $168,745.68. The appellant argues that the damages are inadequate in relation to non-economic loss, past and future economic loss and superannuation. There is agreement between the parties on the last mentioned head of damage. 3 Non- economic loss Damages were assessed under the Motor Accidents Act , 1988. His Honour noted that the defendant (respondent) had suggested an appropriate percentage of a most extreme case was 25%, whereas the appellant had suggested a percentage of between 30 and 35%. His Honour assessed the appellant as 28%, which equated with $43,500 on the scale under the legislation. 4 The point made about the assessment of non-economic loss by Mr Nock S.C, appearing on behalf of the appellant, was that his Honour did not mention the evidence contained in a report by Dr. Christopher Canaris. His opinion, contained in a report dated 8 November 2001, was that the appellant had significant post-traumatic stress disorder. The disorder prevented her from working. Symptoms of the disorder, which was entrenched and permanent, included sadness, irritability, reliving of the accident, autonomic hyper-arousal and phobic avoidance behaviour. She needed treatment for pain management and psychiatric referral for the stress disorder. 5 Like all of the medical evidence in the case, as in the vast majority of cases before the District Court, the evidence was by way of report with no oral evidence. 6 In discussing the medical evidence, his Honour did not refer to the report of Dr Canaris although he briefly alluded to most of the other medical evidence. It is the submission of Mr Nock that his Honour erred in not taking into account the stress disorder even though it was uncontested by the respondent. 7 While it is correct that his Honour did not refer to Dr Canaris or the stress disorder, it is clear that he did not accept all of the doctor's opinion. Clearly his Honour did not accept that the stress disorder (or any other injury or disability) prevented her from working. His Honour said that the appellant's explanations for not having worked since the accident were not convincing. She could have made greater efforts to obtain work and her back complaints were not severe enough to keep her out of the workforce. The judge accepted that the appellant couldn't perform heavy physical work. However, she could retrain, as recommended. Her condition was not permanent and there was a likelihood of improvement. 8 Returning to Dr Canaris' list of the appellant's symptoms, it is significant that nowhere in the evidence in chief was there any attempt to have her describe symptoms relating to a stress disorder. She gave no evidence of episodic sadness or irritability, no evidence of dreams reliving the horror of the accident, nor episodes of hyper-arousal or phobic behaviour. The highest her evidence went was that Dr Charteris, her general practitioner, prescribed anti-depressants, which did not do much for her but helped her sleep. 9 Selecting an appropriate percentage of a most extreme case is notoriously subjective. Although not expressly mentioned by his Honour, it may be that the stress disorder was taken into account. Another possibility, although his Honour does not say so, is that the judge did not give much weight to the disorder since the appellant adduced little or no evidence of any relevant symptoms. 10 What can be said, however, is that if we take account of all of the appellant's injuries and disabilities, including the stress disorder, 28% of a most extreme case seems to be well within the range of judicial discretion. Indeed, it is only 2% less than the bottom of the range suggested by the appellant. I would dismiss this aspect of the appeal. 11 Economic loss With respect to past economic loss his Honour found that the appellant would be fit to return to office duties by June 2000. Accordingly, his Honour allowed only 12 months of total incapacity at $448.00 net per week ($23,096). Thereafter to the date of trial his Honour found that the appellant's earning capacity had been reduced to $300 net per week and her loss was $150 net per week for 3 years to the trial ($23,400). 12 Mr Nock submitted that his Honour was in error in relation to the June 2000 finding of fitness for light duties and that this was not supported by any evidence. Indeed, he noted that the written submissions of the respondent (on the appeal) referred to Dr Charteris' opinion in September 2001 that while the appellant was unable to return to her previous heavy physical work, she could retrain for a sedentary occupation. Indeed, the appellant agreed that in about September 2001 she did work for a couple of days. If she had a chance to work as a console operator at a service station she said that she would give it a go. 13 There does not however appear to be any evidence that she was fit for any work, including light duties, prior to September 2001. I do not understand Dr Harrison's report of 10 July 2001 to really suggest much otherwise. It follows, in my view, that his Honour should have found that the appellant was only fit for light office type duties from September 2001. She is therefore entitled to the full loss of $448 net per week from June 2000 to September 2001. This additional sum, we have been informed, amounts to $19,200 damages. 14 Mr Nock also argues that the appellant should receive the full rate for the whole period up to the trial because of the prospects for promotion in her previous employment. The evidence in relation to this did not rise above the appellant's aspirations. It was unsupported by any document or independent evidence, and while his Honour admitted the appellant's evidence of the promotional grade, he commented adversely upon its weight. In truth, the evidence do not rise much above speculation and his Honour's assessment of $150 net loss to the trial, and for the 10 years beyond, was open to him. 15 As his Honour said he believed that were it not for the accident, the appellant would have continued to work in the same employment earning a similar amount to her pre-accident wage. 16 I would reject the balance of the claim to increase the damages for past economic loss. 17 As to future economic loss, the appellant complains not only regarding the 10 years at $150.00 per week loss, but also about the $15,000 cushion that his Honour awarded for the balance of the appellant's working life thereafter. 18 As to the former, the submission is rejected and is covered by the immediately preceding discussion relating to past wage loss. 19 As to the $15,000 cushion, I think it was open to the judge. His Honour took the view that the appellant could retrain. Indeed, he was somewhat critical that she had not done so by the trial. His Honour found that when retrained the appellant was likely to earn a wage not dissimilar to her pre-accident wage. There were chances of improvement in her symptoms. She would likely catch up in time with her pre-injury earnings. To properly compensate her for the loss she should receive 10 years loss of earning capacity from the trial at $150.00 net per week and a then a further $15,000 thereafter. 20 His Honour referred to this cushion as compensation for "lost opportunity for employment" but in truth it is clear that it was intended to compensate the appellant for her lost earning capacity by reason of her disabilities. I think that the award for future economic loss was open to his Honour to make. 21 Superannuation The parties are agreed that his Honour should have awarded compensation for lost superannuation. That is, $5,748 for past loss (which includes an amount with respect to the increased past economic loss of $19,200) and $7,609 for future loss of superannuation. 22 Orders Accordingly, the verdict will need to be adjusted. I would propose the following orders: 1. Appeal allowed with costs 2. Respondent to receive a certificate under the Suitors Fund Act 1951 if otherwise entitled. 3. The verdict and judgment of $168,745.68 is set aside and in substitution therefor a verdict and judgment be entered for the appellant in the sum of $201,302.68 * * * Last Modified: 09/24/2007 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. 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