Forster, M.H. v. Dunstone, J.V. [1987] FCA 457

JUDGMENT NoAS

CATCHWORDS

APPEAL - Award of damages for personal injury - quantum of damages -

alleged factual errors by trial Judge - role of appellate court.

MARK H. FOSTER v. JACQUELINE VICKI DUNSTONE

ACT G43 of 1986

COURT: FISHER, LOCKHART and GUMMOW JJ. 24 AUGUST 1987

SYDNEY

OQURT OF

ALC FEO EA STRALIA

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY No. ACT G43 of 1986

DISTRICT REGISTRY

GENERAL DIVISION

On appeal from the Supreme Court of the Australian Capital Territory

BETWEEN: MARK H. FOSTER Appellant AND: JACQUELINE VICKI DUNSTONE Respondent JUDGES MAKING ORDER: FISHER, LOCKHART and GUMMOW Jd. DATE OF ORDER: 24 AUGUST 1987 WHERE ORDER MADE: SYDNEY

MINUTE OF ORDERS

THE COURT ORDERS THAT:

1. The appeal be dismissed; and 2. The appellant pay the costs of the respondent of the appeal. NOTE: Settlement and entry of orders is dealt with in Order 36 of

the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY No. ACT G43 of 1986

DISTRICT REGISTRY

wee we Sw

GENERAL DIVISION

On appeal from the Supreme Court of the Australian Capital Territory

BETWEEN: MARK H. FOSTER Appellant AND: JACQUELINE VICKI DUNSTONE Respondent

COURT: Fisher, Lockhart and Gummow JJ.

24 August 1987

REASONS FOR JUDGMENT

THE COURT

This is an appeal from an award of damages by the Supreme Court of the Australian Capital Territory (Miles C.J.) in an action for damages for personal injuries sustained by the respondent as a result of a motor vehicle accident on 5 August 1978. She was travelling as a passenger in a motor car driven by the appellant. The vehicle overturned when the appellant failed to negotiate a bend on the Oxley Highway whilst driving towards Port Macquarie. It was late at night. The respondent lost consciousness. She was taken to the Hastings Hospital at Port Macquarie where she spent the rest of the

night. She was discharged the following day and returned to Canberra

2. where she lived. She received medical treatment thereafter for her

injuries.

The respondent was born on 11 December 1959. She was 18 years of age at the time of the accident. She left school in 1978 and commenced employment on a part-time basis with the Canberra City Soccer Club doing various jobs such as cleaning up the office, helping behind the bar and washing dishes. This was her employment when she

sustained her injuries.

The respondent had been active in sport and other activities including hockey, women's soccer, gymnastics, trampolining, walking,

orienteering and arts and crafts.

After the accident the respondent resumed her job at the soccer club, but the work was too onerous, She experienced pain in the lower back at the end of a day's work. She resigned after about two months and took up a position with a firm of stationery suppliers, Kennard's Stationers, where she remained for a few months. She found the stacking of shelves, the carrying of boxes and the cleaning of the premises difficult because it caused pain in her lower back. She had "neck and shoulder pain" at the end of a day's work and had to rest. She was "made redundant" and moved to another position of a part-time nature at a car wash establishment. She found this work difficult, particularly when she was required to get in and out of motor vehicles for the purpose of vacuuming and cleaning them. She stayed there for

about five months and then became a hostess for a car hire company,

3. Budget Rent-A-Car. This waS a more attractive position because it provided her with full time employment. It was also more within her

physical capacity.

The respondent married on 24 November 1979 and did not recommence employment until July 1981. It was not suggested that the gap in employment was due to her injuries sustained as a reSult of the accident. During that period she undertook a secretarial course at a technical college in the Australian Capital Territory, Bruce T.A.F.E.. She gave evidence that during that course she had problems with her back and hips as her hips were stiff and would "seize up" when she walked. In July 1981 the respondent commenced employment in the Australian Public Service as a secretary. She progressed and, in September 1984, became a personal secretary to a Senior Member of the Administrative Appeals Tribunal, a position which she held at the date

of the trial.

The respondent has problems at work if she sits for long periods. When she takes dictation her neck stiffens. She avoids lifting anything heavy as her hips are liable to "seize up" at the end of each day. Regardless she is tired at the end of the day so that when she arrives home she usually has to lie down immediately. From 1983 onwards she has employed people to assist in the cleaning of her

house.

The trial Judge found that Mr. Ballard for whom she presently

works as a secretary is a sympathetic employer but he is due to retire

4. in three years time. The respondent, upon Mr. Ballard's retirement, would seek to obtain part-time work of the same general nature that

she is doing at present.

She has not played hockey since the injury and has abandoned some of her activities. She is not entirely inactive on weekends and often walks with her husband for a distance of a kilometre or two. She takes an interest in gardening and swims several laps of a pool at least twice a week. The pain in her hip occurs virtually every day. The pain in her lower back occurs regularly after sitting for a prolonged period. Both hip pain and back pain interfere with her sleep. The respondent has been advised that surgery may become necessary in order to alleviate the condition in the back. She accepts this but says it frightens her. She is wary about having children because of the difficulties of carrying a child during pregnancy and lifting a young child. However, she does not claim to

have abandoned the idea of having a family.

The trial Judge found that the respondent was a completely truthful witness. She was not challenged as to the extent or the genuineness of symptoms which she described in her evidence nor was she challenged as to the times of the onset of those symptoms. The trial Judge also noted that, despite the impressiveness of the respondent as a witness, some of her evidence did not receive

"positive support" from the doctors.

5.

The trial Judge carefully reviewed the medical evidence. Only some of the doctors whose reports were in evidence were examined in the witness box. It is, in our view, unnecessary to refer in detail to the medical evidence. It is sufficiently set forth in his Honour's reasons for judgment. Reports from Dr. Wilson and Dr. Kitchin, an orthopaedic surgeon, were tendered, but the doctors were not called. The doctors who gave viva voce evidence were Dr. Greenhalgh, a general practitioner, Dr. Geoffrey Stubbs, an orthopaedic surgeon to whom the respondent was referred by Dr. Greenhalgh in May 1982, Dr. Andrews, a

neurologist and Dr. Andrea, a general surgeon.

The trial Judge said that he preferred the evidence of Dr.

Stubbs to that of Dr. Andrea and Dr. Andrews.

The respondent has two conditions which are the source of much of her present problems and which were the subject of argument before the trial Judge and on appeal. These conditions relate to the respondent's lower back and hips. She complains of low back pain and pain and clicking in the hips. This is a condition which is known as "snapping hips" or a dislocation of the ilio-tibial band over the greater trochanter of the femur. The respondent suffers' from spondylolisthesis and some of the medical evidence was to the effect that this condition was congenital and unrelated to the motor vehicle

accident.

The spondylolisthesis has resulted in a condition whereby the

disc immediately above the vertebra where the slipping occurs is

6. pushed inwards towards the pelvis and remains partially unsupported by the muscular structure which would otherwise have given its support. This causes a redistribution of the mechanical forces throughout the spine and, according to the evidence of Dr. Stubbs, is a likely cause of continuing or recurrent pain and of accelerated degeneration in the spine. Both Dr. Stubbs and Dr. Andrews expressed the view that the

condition can be alleviated by operative fusion.

Dr. Andrews tended to the view that the accident had merely accelerated what would have become a pain producing spondylolisthesis in any event and that the symptoms had been brought forward in time by about five years. Dr. Stubb's view was that the area would not necessarily have become pain producing at all and that the symptoms since the accident have been due to it. Dr. Stubbs agreed, however, that, if there was no experience of pain in the lower back for two years or so after the accident, then the accident should not be

regarded as having any significant causal connection.

His Honour said that in the end one got back to the evidence of the respondent herself. His Honour said that, although according to her evidence, the onset of lower back pain was not noticed for at least a week after the injury, he was convinced in the light of the medical evidence that it was unlikely that the onset of lower back pain was merely a coincidence, a manifestation of the condition of spondylolisthesis that became symptomatic spontaneously and without any connection with the injury. His Honour said that the fact that

the respondent did not notice pain in the lower back during the first

7. week or so after the accident may be explained by the discomfort she had generally with bruising over most of her body. He noted that she said that she had low back pain doing various activities whilst employed with the stationery supplier and that she had lower back pain since then. He said it was likely that from time to time the lower back pain had been overshadowed by the hip pain. He accepted Dr. Stubbs's evidence that the marked deterioration in the spinal condition between 1982 and 1983 reflected the increased mechanical stress within the lower spine which the 1978 injury had precipitated. He said that there was no question, however, that the respondent's damages must be reduced for the contingency both past and future that, even without the injury, she might have developed a pain in the lower

back.

On the question of the causal connection between the "snapping hips" condition and the accident, the trial Judge accepted the respondent's evidence that she felt pain and noticed bruising in both hips within a day or two after the accident. He said that the pain in the right hip was probably overshadowed by the greater pain in the left hip. He said that it was not difficult to come to the conclusion that on the balance of probabilities, the left hip was rendered symptomatic by the injury. He arrived at ae similar

conclusion in regard to the right hip.

As to loss of earning capacity, his Honour found that the respondent is unable to work for long periods of time in the sort of

occupation she now follows and for which she has acquired vocational

8. skills and experience. It is possible that in the future she will not be regarded with the tolerance shown by her present employer. It was reasonable that in the future she may prefer part-time work, or, if she cannot get it, to cease work altogether until part-time work is available. His Honour considered other contingencies, namely, that as a young married woman the possibility of having children must be taken into account as a factor which would take her out of the workforce for some time, probably several years. Another contingency to be taken into account was that at some stage, by reason of degeneration alone or by reason of some other trauma or of a combination of these Matters, the respondent's spondyolisthesis would become symptom-producing and incapacitating. He said there was also a similar contingency, although more remote, in relation to. the

"snapping hips".

The trial Judge concluded that the respondent's present condition, both with regard to her hips and her lower back, was more probably than not caused by the 1978 injury. He said he was not convinced that it was inevitable that, without the injury, the respondent would have suffered a symptomatic lower back condition from

her spondyolisthesis, but the damages must allow for that contingency.

The trial Judge found that the respondent's. physical condition had not improved over the last few years. She has had a variety of treatments including electrical therapy and prescribed exercises in the form of aquarobics, cycling and the like. On 30

November 1980 the respondent was admitted to the Woden Valley Hospital

9. where an operation was performed on her hips. No relief from the hip pain resulted. She still carries operative scars which the trial Judge saw. He described them as being very obvious and noted that they would not be hidden by a swimming costume. One scar is about five centimetres long, the other slightly shorter. During 1984 she wore a brace. The trial Judge described it as an extremely cumbersome object and stated that he understood why it added to her discomfort. Medication was prescribed from April 1984 through to March 1985 but was discontinued because, as the respondent said, it was having no

effect on her.

As to the future, his Honour found that the indications were that the respondent was likely to get worse unless her condition was relieved by operative procedures. Again he said the damages would have to allow for that contingency of relief including the off-setting contingency of the operation. He said that the contingency of surgical intervention was not one of high likelihood and that, 1n any event, if she does have a successful operation, she will be relieved

to some extent of the symptoms but she will never have a normal back.

His Honour found that the respondent is a young woman who has had her enjoyment of life drastically curtailed by the results of the injury. But for the injury she was likely to have enjoyed an active and successful sporting career and social life which have, for all practical purposes, been brought to an end. She appears to be a reasonably resourceful young woman and has not' suffered any

psychological harm. The physical disability causes difficulties

10. within her marriage and places substantial difficulties in the way of

motherhood.

His Honour found that it was impossible, in the circumstances, to fix the loss of earning capacity for the future by applying a discount rate to a periodic loss. He noted, however, that a loss of $1 per week for 34 years into the future when the respondent would be almost 60 years of age has a present value, on 3% discount rates, of about $1,200. The actual loss in the past of earnings was small and was agreed to be $482.63. Medical and hospital expenses and

the like were agreed to be $3,011.83.

His Honour included in the award of damages an amount paid by her for domestic assistance in the past at $20 per fortnight in 1983 and 1985 and at $25 per fortnight in 1986, a total of $1,055. The respondent made a claim for future domestic assistance on the basis of $25 per fortnight. His Honour said that this seemed to be reasonable and allowed, after applying the 3% discount rate with a reduction for vicissitudes, a sum of $10,000 under this head. He noted that in allowing that sum he took care to ensure that it was not duplicated by overlapping with the area of general damages. His Honour said that it was the sort of problem that would be met in many households, not by engaging outside assistance, but by the uninjured spouse assuming

greater responsibility for household work.

His Honour allowed $50,000 general damages for pain and

suffering and loss of enjoyment of life and $50,000 for loss of

ll. earning capacity. The award of damages made by his Honour was

therefore as follows:

Past loss of earning capacity $ 482.63 Medical and out-of-pocket expenses $3,011.83 Past claim for domestic assistance $ 1,055.00 Future claim for domestic assistance $10,000.00

Pain and suffering and loss of enjoyment

of life $50,000.00 Future loss of earning capacity $50,000.00 Total $114,549.46

His Honour also allowed interest on one-half of the general damages at 14% per annum, reduced by half, amounting to $13,702.50. He entered judgment for the respondent in the sum of $128,251.96. His Honour

ordered the appellant to pay the respondent's costs.

The appellant submitted that the trial Judge had acted on wrong principles of law and that the amount of damages was so inordinately high that it should be disturbed on appeal. The error of law was said to arise from the circumstance that his Honour accepted Dr. Stubbs in preference to Drs. Kitchin, Andrews and Andrea in reaching his conclusion that the low back pain was due to the accident subject to some element of discounting. It was said that his Honour paid regard to only one portion of Dr. Stubbs's evidence and that when

his evidence is read as a whole it is not capable of supporting the

12. his Honour's conclusion. It was said that the evidence of Dr. Stubbs which his Honour accepted was to be contrasted, not only with the evidence of the other medical practitioners, but with written material

such as hospital notes.

A related submission was that Dr. Stubbs's opinion, which was accepted by his Honour, was conditional upon complaints of back pain being made by the respondent at least a couple of days after the accident. Yet, so it was submitted, the contemporaneous evidence of

complaint by the respondent does not disclose such a complaint.

Another aspect of this submission was the assertion on behalf of the appellant that, even if it was correct to find, as his Honour did, that the accident caused some acceleration of the presentation of symptoms with respect to the back condition of the respondent, the only reasonable inference that could be drawn from the evidence was that the respondent would have eventually suffered symptoms from the

pre-existing condition of spondylolisthesis.

It was submitted that his Honour erred in holding that there was no challenge made as to the extent or the genuineness of symptoms which she described in her evidence or as to the times of the onset of those symptoms. It was said that the respondent was in fact challenged about these matters in cross-examination. It was submitted that the award of $50,000 for general damages was so excessive or inordinately high that it should be disturbed on appeal. A related

submission was that no deduction or discount was made by the trial

13. Judge for the likelihood of the injuries to her back and hip appearing

independently of the accident.

It was submitted that the award of $50,000 for economic loss was so inordinately high that it too should be disturbed. The respondent had lost only $482.63 in wages from the date of the accident (5 August 1978) until the date of judgment, nearly eight years later; yet there was no evidence to support a finding that the respondent's working capacity on a full-time basis will be interfered with from any symptoms arising from the 1978 accident. The allowance

was said to be excessive and disproportionate.

It was also submitted that there was no medical evidence suggesting the need for domestic assistance, that the evidence generally did not support the need for assistance arising from symptoms occasioned by the accident in 1978 and that there was no evidence to suggest the need for continuing assistance as a result of

symptoms arising from the accident.

This sufficiently summarises the principal submissions made

by counsel for the appellant.

It is unnecessary to discuss at length the principles that govern an appellate court's task when it is called upon to review an assessment of damages for personal injuries. The authorities have consistently recognised that where the assessment was made by a Judge

the appellant court will only interfere if it is satisfied that the

14. Judge acted on an error of principle or misapprehension of the facts or made a wholly erroneous estimate of the damages suffered. Where the award was made by a jury, the test is even more stringent. For present purposes it is sufficient to refer to the observations made by

Lord Wright in Davies v. Powell Duffryn Associated Collieries Limited

[1942] A.c. 601 at pp. 616-7:

"There is an obvious difference between cases tried with a jury and cases tried by a judge alone. Where the verdict is that of a jury, it will only be set aside if the appellate court is satisfied that the verdict on damages is such that it is out of all proportion to the circumstances of the case: Mechanical and General Inventions Co., Ld. v. Austin [1935] A.C. 346. Where, however, the award is that of the judge alone, the appeal is by way of rehearing on damages as on all other issues, but as there is generally so much room for individual choice so that the assessment of damages is more like an exercise of discretion than an ordinary act of decision, the appellate court is particularly slow to reverse the trial judge on a question of the amount of damages. It is difficult to lay down any precise rule which will cover all cases, but a good general guide is given by Greer L.J. in Flint v. Lovell (1935) 1 K.B. 354, 360. In effect the court, before it interferes with an award of damages, should be satisfied that the judge has acted on a wrong principle of law, or has misapprehended the facts, or has for these or other reasons made a wholly erroneous estimate of the damage suffered. It is not enough that there is a balance of opinion or preference. The scale must go down heavily against the figure attacked 1f the appellate court is to interfere, whether on the ground of excess or insufficiency."

This passage was cited with approval by the High Court of Australia in Miller v. Jennings (1954) 92 C.L.R. 190 at 195-196 and Gamser v. The

Nominal Defendant (1977) 136 C.L.R. 145 at 148-149. See also the

judgments of Full Courts of this Court in Donnelly v. Baker, (ACT G51

15. of 1985), unreported, 11 April 1986; and Leong v. Ferrington (ACT No.

G46 of 1986), unreported, 17 March 1987.

The two fundamental findings made by the trial Judge were his acceptance of the respondent as a truthful and reliable witness and his acceptance of the evidence of Dr. Stubbs in preference to any differing opinions of the other doctors who gave evidence or whose

reports were in evidence.

Dr. Stubbs gave evidence that the respondent had a condition of spondylolisthesis before the 1978 accident which was then causing her no pain or disability, but which left her at risk of developing low back pain even without trauma. He said that the risk of her developing low back pain without intervening trauma was about one chance in five. Dr. Stubbs said that spondylolisthesis ceases to develop further between the ages of 15 to 20 years, whenever the person in question stops growing, and that the "more usual" experience of a patient with a symptomatic spondylolisthesis is that the symptoms develop after injury. He said that such post traumatic symptoms will

produce pain within a few days after injury.

Counsel for the appellant had cross-examined the respondent with respect to the complaints she made from time to time to the various doctors whom she consulted and to whom she was referred. Counsel suggested that she had not complained of back pain at any time close to the date on which she sustained her injury from the

motor car accident. On these occasions the plaintiff replied that she

16. could not remember whether or not she had complained of back pain. We note in passing that nearly eight years had elapsed between the date of the accident and the trial. The respondent gave evidence that she was hurt all over her body immediately after the accident and that she had bad bruises over quite a lot of her body, including her thigh up

to her hip bone and around the back.

After she returned to the soccer club at Canberra, which was only about a week after the accident, she found that the hip and the lower back were painful. This pain also persisted when she was at Kennard's Stationers where she remained until early 1979. Indeed, she was in effect "laid off" because she was unable to perform the physical duties which caused the discomfort to her lower back. She then commenced employment with the car wash establishment and later went to Budget Rent-A-Car. When she went to the Bruce T.A.F.E. College to study a secretarial course in about June 1980 she was having a lot of difficulty with her back and her hips. She also complained to Dr. Kitchin in about July 1980 about pain in her lower back. She complained about it also to Dr. Greenhalgh on 9 June 1980 and about her "snapping hips" and pain in the back and hips. It was put directly to the respondent twice in cross-examination that it was not until after May 1982 that she started to notice anything really significant about her back pain; on each occasion she denied the suggestion. She was not thereafter challenged directly upon her

denials.

17.

In our opinion it has not been established that there was not sufficiently reliable evidence before the trial Judge to support his acceptance of the respondent as a truthful and reliable witness and the medical opinions expressed by Dr. Stubbs in preference to conflicting opinions of other doctors. Nor has the attack on his Honour's findings that the respondent was not challenged as to the extent or the genuineness of symptoms which she described in her

evidence or the times of the onset of those symptoms been established.

The trial Judge's award for $50,000 for general damages is not one that should be disturbed. For what the respondent has undergone and for the conseguences which have followed it is

compensation which is by no means excessive.

As to the award of $50,000 for future economic loss this is not in our opinion an excessive figure which calls for intervention by this Court. At the time of trial the respondent was 26 years of age with a disabling back condition that was likely to worsen progressively. She had other physical difficulties which cumulatively have seriously affected her lifestyle and will continue to do so. Although her employment at the date of the trial was as a secretary to a Senior Member of the Administrative Appeals Tribunal, the trial Judge's finding that it 18 possible in the future that she will not be regarded with the tolerance shown by her present employer 1s one plainly open on the evidence. His Honour's finding that it is reasonable that in the future she may prefer part-time work or, 1f she

cannot get it, to cease work altogether until part-time work is

18. available is also open on the evidence. His Honour's finding that there is a loss of earning capacity in that she is unable to work for long periods of time in the sort of occupations which she now pursues and for which she has acquired vocational skills and experience cannot be disturbed. There is obviously substantial doubt about the capacity of the respondent to engage in steady and uninterrupted employment, whether full or part time. It must also be remembered that the back condition of the respondent is, according to the evidence of Dr. Stubbs, likely to degenerate progressively. The award of $50,000

should not be disturbed.

As to the challenge to the allowance of $10,000 for housekeeping services, there is plainly no substance in the contention on behalf of the appellant that the absence of evidence from any medical witness suggesting the need for domestic assistance vitiates the award of this component in her claim. The $10,000 was fixed by his Honour on the basis, so it seems, of the payment of $25 per fortnight for doing housework which she is unable or finds difficult to do because of her injuries. His Honour made it clear that any allowance under this head must not be duplicated by any overlap with the area of general damages. We see no reason to disturb this

finding.

In summary, this is a case in which the attacks made on the findings of the trial Judge have not been established. There was sufficient evidence to support all findings which his Honour made that

were the subject of challenge before us on appeal. It has not been

19.

established that the trial Judge acted on any wrong principle of law

or misapprehended the facts or for those or any other reasons made a

wholly erroneous estimate of the damage suffered.

The appeal must be dismissed with costs.

Counsel and solicitors for the appellant:

Counsel and solicitors for the respondent: Date of Hearing:

Date of Judgment:

I certify that this and the preceding eighteen (18) pages are a true copy of the reasons for judgment herein of their Honours Mr. Justice Fisher, Mr. Justice Lockhart and Mr. Justice Gummow.

Dated: Q% August 1987

Associate rm

M.W. Robinson instructed by Messrs. Crossin & Co.

B. Sully Q.C. with R.E. Williams instructed by Messrs. Snedden, Hall & Gallop.

13 July 1987

24 August 1987