Armitage v Haines

[1999] NSWCA 141

CITATION:	ARMITAGE v HAINES [1999] NSWCA 141
FILE NUMBER(S):	CA 40927/97
HEARING DATE(S):	8 March 1999
JUDGMENT DATE:	18 May 1999
PARTIES :	Barbara Jean ARMITAGE v Trevor William HAINES
JUDGMENT OF:	Mason P at 1; Sheller JA at 48; Fitzgerald JA at 49

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	DC 6259/97
LOWER COURT JUDICIAL OFFICER:	Murrell DCJ

COUNSEL:	F S McAlary/N Abadee (Appellant) H G Shore (Respondent)
SOLICITORS:	G H Healey & Co (Appellant) Eleonora G Scarparo (Respondent)
CATCHWORDS:	DAMAGES - Award of general damages - Review of a discretionary decision - Disproportionate to nature and consequence of injuries and disabilities - Compensatory damages; DAMAGES - Award for economic loss - Precluded by injury from further desired work - Future economic loss - Global award
DECISION:	Allowed in part

1 MASON P: The appellant challenges the adequacy of two items in an award of damages totalling $315,006 for a work injury involving negligence. The items are the award of $45,000 for general damages and $50,000 with respect to future economic loss. The respondent is a nominal defendant appointed to defend the proceedings on behalf of the State of New South Wales.
The injury
2 On 25 June 1979 the appellant commenced employment as the clerk to Master Allen of the Supreme Court. In 1986 Master Allen was appointed a judge. During the week prior to his swearing in as a judge the appellant did most of the work involved in moving the judge’s library and personal papers from his old to his new chambers. It was found that proper assistance had been refused. The appellant worked for prolonged periods lifting books and other items. She had to move about 1,000 books, many bundles of papers, personal files and many other items. This task involved a lot of bending, lifting, twisting and stretching.
3 The trial judge (Judge Murrell SC) found that the twisting motions in which the appellant was repeatedly engaged were attended by danger. There was a foreseeable risk of injury which could have been neutralised by the use of professional removalists or by the provision of an assistant and proper instruction as to lifting technique. The finding of negligence is not challenged on appeal.
4 The appeal proceeded on the basis of acceptance by both parties of the trial judge’s findings in relation to the appellant’s pre-existent medical condition, the impact of the lifting incident on the appellant’s back, and the consequential disabilities suffered by the appellant.

Medical evidence
5 The appellant was in considerable pain for several months after July 1986. However she failed to seek prompt medical attention because she did not then treat her condition very seriously, considering it to be a back strain which would improve with time. Unfortunately it did not.
6 On 7 October 1986 the appellant first consulted a doctor about her back. She complained of pain in her right hip over the past twelve months, lower back pain and pins and needles down the side and front of her leg. Subsequently she had manipulation of the L4 level (October 1986) and a lumbar support (late 1986). A CT scan of the appellant’s lumbar spine was performed in November 1986. It showed degeneration of the intervertebral discs between L3 and S1. The changes were most pronounced at the L4/5 level.
7 Commencing in early 1987 the appellant consulted a number of orthopaedic surgeons, including surgeons retained by the respondent.
8 In July 1989 the appellant had facet joint injections at the L4/5 level. These eased the pain in the appellant’s back but provided no assistance in relation to the right leg pain. Since July 1991 the appellant has been treated with massage by an osteopath about twice a month.
9 The orthopaedic specialists whose evidence was tendered expressed different views in relation to the impact of the 1986 lifting episode upon the appellant’s disabilities, most notably her back and leg pain. The trial judge preferred the evidence of Dr Yeo, to the extent that it differed from the views expressed by the other doctors. The appellant had seen Dr Yeo in September 1987. He considered that she had underlying degenerative changes (well beyond those which would ordinarily be expected in a woman of her age - she was 43 at the time), upon which there was superimposed a chronic muscle strain. Dr Yeo attributed the appellant’s constant underlying pain to scar tissue or fibrosis resulting from the 1986 lifting episode, rather than to the underlying degenerative condition. He said that pain above the L4 level was probably due, not to the lifting trauma, but rather to underlying degeneration. In Dr Yeo’s view, but for the accident the appellant would have experienced only intermittent back pain rather than continuous back pain. However, the frequency of the intermittent pain would have increased over time due to the underlying degenerative change.
10 The learned trial judge summarised her findings on the medical evidence as follows:
I find that prior to July 1986 the plaintiff’s degenerative back was only mildly and intermittently symptomatic. But for the July 1986 lifting incident, her back symptoms would have worsened slowly. However, they would not have progressed to their present level of severity. The lumbar disabilities from which the plaintiff has suffered to date are primarily attributable to the July 1986 lifting incident. The lumbar disabilities from which the plaintiff will suffer in the future will be decreasingly related to the July 1986 incident, and increasingly related to her underlying degenerative condition.

Appellant’s disabilities stemming from the accident

11 The trial judge accepted the appellant’s evidence as to her disabilities. It was found that she had not been pain free since July 1986. She has suffered pain in her lumbar area, her right buttock, and down the outside of her right leg to her right big toe.
12 The appellant is a resourceful and energetic person. She worked as Allen J’s associate (having previously served as his clerk, when he was Master) from July 1986. This work was performed despite the disabilities stemming from the accident to which further reference will be made. In July 1992 she was retired medically unfit. She was retired on the basis of a Healthquest assessment that she was not fit to discharge the duties of her position as a judge’s associate.
13 The primary judge found that, from July 1986, the appellant’s work capacity was lower. While her condition fluctuated, she became progressively worse. She had trouble sitting in court and at a typewriter for a substantial period of time. There was limited assistance and relief, but the burden of the work was exacerbated by back pain and its ensuing disabilities. Despite her disabilities, the appellant did not take any time off work during the period she remained as an associate.
14 Although she did not take any time off work, the appellant’s lower back condition has restricted many activities. She has difficulty sitting for long periods. She tends to use her arms to support herself when sitting and to lift herself out of chairs. She has difficulty standing for long periods, for example at social functions. From a squatting position she has difficulty standing up. Walking for long periods or on rough ground causes difficulty, as does walking up and down stairs. She experiences a sensation of “brushing” down her right leg. She carries herself stiffly, and she avoids twisting and avoids bending and lifting heavy items.
15 There is weakness of dorsiflexion of her right ankle. This has meant that her right foot tends to catch and she tends to trip if she does not concentrate, especially when walking on rough ground. It was Dr Yeo’s evidence that this phenomenon was primarily due to the degenerative change in her back. The trial judge accepted that this disability was caused by the 1986 lifting incident.
16 The appellant’s sleep has been disrupted by pain. Since the incident she has been more irritable and worried and her concentration and memory have been adversely affected.
17 At one stage she suffered nausea associated with the ingestion of anti-inflammatory medication. In March 1992 she consulted Dr Milton, a psychiatrist, for the first time. Thereafter she saw him fortnightly for some time. Her chronic back pain was held to be one important contributor to intermittent significant depression suffered since 1992. However, other matters have also contributed.
18 The back pain has restricted the appellant’s ability to attend to various domestic tasks. She is unable to mow her lawn. She is very restricted in the type of gardening which she can undertake. She cannot undertake heavy housework such as vacuuming and cleaning the bath. Driving a car causes pain unless there is power steering and good lumbar support. In any event she is unable to drive for long periods. She cannot wash her dog and cannot take her grandchildren on strenuous outings.
19 In June 1979 the appellant was elected to Waverley Council as an alderman. She served on the council until 1997, holding office as Mayor between 1987 and 1997. Her official duties included attending Council meetings once a month, attending monthly inspection meetings, conducting interviews, attending other meetings and reading documents. She worked up to 30 hours per week on council duties on top of her workload as a judge’s associate.
20 The back condition imposed limitations upon the appellant’s council work. For example she found it difficult to travel to site inspections a mini bus. Accordingly she attended limited site inspections. When as Mayor she chaired council meetings, she found it necessary to stand and move around approximately every hour. Some social functions were onerous.
Challenge to the award of general damages
21 The appellant accepts that in the present circumstances her challenge to the award of general damages is to be considered by this Court as if analogous to the review of a discretionary decision (Moran v McMahon (1985) 3 NSWLR 700 at 716-722; Fuller v Galvin, Court of Appeal, unreported, 7 April 1995). It is submitted that the award of $45,000 is so disproportionate to the nature and consequence of the injuries and disabilities found by the trial judge as to go beyond the range of the exercise of a sound discretion in the award of damages.
22 The findings as to the appellant’s disabilities, pain and discomfort stemming from the respondent’s negligence and the incident in July 1986 are set out in pars 11-18.
23 Prior to mid-1986 the appellant suffered from degenerative change to her lumbar spine. Before the accident her back was mildly and occasionally symptomatic. Based upon Dr Yeo’s evidence, which was accepted, the primary judge found that, but for the lifting accident, the appellant’s back symptoms would have worsened. The precise finding is set out in par 10 above. Two aspects of that finding are worthy of attention:
(1) the worsening would have occurred slowly
(2) the lumbar disabilities suffered between July 1986 and late 1997 (trial, judgment) were primarily attributable to the July 1986 lifting incident.
24 The learned judge also held that, but for the 1986 lifting incident, the appellant’s work capacity would have been limited from 60 years of age (after 2002).
25 Together, these findings involve acceptance that the appellant suffered considerable, constant and debilitating back pain over a prolonged period as the result of the negligence, with consequential disabilities, restrictions in enjoyment of life and ensuing depression.
26 Despite the accepted evidence of pre-existing degenerative change, and the likely impact of that change upon the appellant’s condition even without the intervention of the accident, I consider that the award of $45,000 general damages fell short of an adequate compensatory response. I would substitute the figure of $70,000, with a consequential adjustment of the interest on general damages from $5130 to $7980.
Award for economic loss
27 Despite her injury in 1986, the appellant continued to work as a judge’s associate (without loss of wages) until July 1992. She was also able to continue her energetic public service as an alderman and later as the Mayor of Waverley Council. She held the latter office between 1987 and 1997. From about 1994, she received in excess of $20,000 by way of mayoral and councillor allowance. In addition, as Mayor she received use of a Council vehicle, including private use. She was obliged to expend much of her allowances on matters such as election expenses, flowers, gifts and entertainment expenses.
28 Since her retirement as a judge’s associate in 1992 the appellant has pursued her interest in craft. In mid-1996 she commenced to operate a craft stall in the Blue Mountains. This does not appear to be a profitable venture, but it reflects a choice of lifestyle for at least part of the appellant’s working week.
29 She has also undertaken mediation training and conducted one mediation.
30 She has been appointed chairman of the Local Government Grants Commission for a term between 1 July 1997 and 30 June 2002. This carries a salary of about $23,000 gross plus expenses. The work is generally confined to about three days per month.
31 But for the lifting accident, the appellant would have worked as Allen J’s associate until 30 July 1996. She gave evidence that, had it not been for the accident, she intended (upon retirement from this position) to seek a fulltime position as a policy adviser to a State minister or to undertake consultancy work in the field of local government. Had she found work of sufficient interest, she would have intended to work until 65 years of age (ie until 2007). Alternatively she would have moved to live in the Blue Mountains where she would have operated a craft shop.
32 The primary judge accepted that the appellant would have worked as Allen J’s associate until 30 July 1996 had she not been injured. She also held that it was most unlikely that the appellant would thereafter have obtained a position as an electoral officer or ministerial adviser, because of the difficulty of obtaining such positions and the limitations by then imposed as a result of the appellant’s underlying degenerative condition. (This latter finding was amply supported by the evidence of Mr Page, the member for Coogee, a witness called by the appellant.) Nevertheless, the trial judge allowed for “the small chance” that the appellant might have obtained such a position. Her Honour also found that the appellant would have pursued much the same employment as she has in fact pursued since retirement as an associate. I take this to be a reference to the mix of callings followed by the appellant since 1992, largely concurrently: occasional work as a local government consultant, public service as Mayor of Waverley and as chairman of the Local Government Grants Commission, operation of a craft stall in the Blue Mountains, and occasional mediation work.
33 The appellant has undertaken mediation training and has conducted one mediation. Her evidence was that she believed that her back condition would preclude her from conducting a long mediation. The type of mediation in which she was both experienced and interested was the facilitation of public consultation meetings relating to local government matters. There was evidence that the processes involved in such work were not dissimilar from the mayoral chairing of a council meeting. It was indicated however that, unlike the situation of a mayor, a facilitator who was experiencing pain may not be able to move about or walk out of the meeting, or delegate the chair to another person. Apparently this evidence was accepted by the trial judge who found that, were it not for the injury, the appellant would have been able to take on more mediation and/or consultancy work than she is currently able to undertake.
34 Based on these findings the judge allowed a lump sum of $50,000 in relation to economic loss.
35 The appellant accepts that a global assessment may be appropriate in some cases. But she contends that it is preferable that a precise arithmetical analysis be undertaken (see eg Fry v McGufficke, Full Federal Court, unreported 26 November 1998). In her written submissions, the appellant submitted that the award of $50,000 for economic loss was in error, and that there should have been a more precise mathematical calculation. Alternatively, a much higher global award for this component of loss was contended for.
36 It was submitted that the trial judge should have found that, but for the accident, the appellant would (from 1992 until 2007, when she would have turned 65) have worked as a mediator and/or consultant doing approximately 10 hours per week at a rate of $150 per hour, in addition to the work that she is currently doing. Applying the appropriate multiplier and allowing 15% for contingencies, this would have yielded a gross figure of $575,917.
37 The appellant also relies upon the finding that, but for the accident, she would have continued working as an associate until 30 July 1996, with the result that a significant portion of the $50,000 award really covered the period (between July 1992, when she retired, and July 1996, when Allen J retired) during which she would have earned full wages as an associate.
38 In my view it has not been established that the trial judge erred in this component of the damages award.
39 It is well established that there are cases where the uncertainties of a plaintiff’s position are so complex and problematic that a global award or “cushion” is appropriate (see Arrowsmith v Haines, Court of Appeal, unreported, 21 August 1990, McDougall v Cullen, Court of Appeal, unreported, 29 March 1995). Here, the appellant’s position was most problematic, both as it stood before and after the accident. Her pre-accident condition was such that the time would have come during her working life when her lumbar disabilities would have been as bad without the accident as they were with the accident. This was found to be in 2002, when the appellant turned 60, on the basis of progressive worsening up till then.
40 The appellant’s own plans, pre-accident, would also have cast her life upon uncertain waters after leaving the security of the position as judge’s associate in July 1996. It was found that the types of activities which she has become involved in represent the types of activities she would have become involved in were she uninjured.
41 A key plank in the appellant’s claim for future economic loss was the evidence of Mr Elton. He was a self-employed social policy consultant who was formerly employed by Waverley Council. He gave evidence that the appellant’s local government experience and personal qualities suited her to work as a local government consultant. This would involve facilitating public consultation meetings involving up to about five hours work, including meeting time of up to three hours. The process was not dissimilar from the mayoral chairing of a council meeting. However, unlike the situation of a mayor chairing a council meeting, a facilitator who was experiencing pain may not be able to move about, walk out of the meeting, or delegate the chair to another person. Mr Elton said a typical charge for such services would be about $200 per hour. He imagined that at least 30-35 hours a week employment might be expected by someone like the appellant “in terms of organisation and design of such processes”. Under cross-examination Mr Elton conceded that the appellant would have expected to start off in the range of $100-$200. He ventured that if he were employing the appellant tomorrow he would be charging her services out at $150 per hour.
42 Based principally on this evidence the appellant submitted that, but for the accident, the appellant would from July 1996 onwards have worked for about 10 years as a mediator and/or consultant, doing approximately 10 hours work per week at a rate of $150 per hour, in addition to the work that she is currently doing. Applying the 3% multiplier and discounting 15% for contingencies this produced a figure of $575,917.50.
43 Referring to a report of a chartered accountant addressing this aspect of the claim, Murrell DCJ held that the assumptions that the appellant would have immediately established a successful practice as a consultant and that there was an unlimited supply of work which would have become available to her were each unjustified. This finding was open to her Honour in the light of Mr Elton’s evidence to the effect that his organisation did not presently retain anyone with the appellant’s qualifications, despite being a large organisation that would presumably wish to maximise its profits.
44 There are further difficulties with this aspect of the appellant’s claim. The appellant has used gross figures. And her calculations do not allow for the burden and time commitment of the appellant’s other post-retirement callings, which were found by her Honour to be the types of activities the appellant would have become involved in were she uninjured. The calculation based upon a full working life until 2007 also pays no regard to the impact of the pre-accident degenerative condition.
45 Another difficulty is that the appellant’s evidence scarcely supports the suggestion that she would have plunged into a career as a mediator to the extent contemplated by a claim based upon 10 hours work per week. To date the appellant had done a course as a mediator and she had done one mediation. In contrast to Mr Elton’s evidence, she was paid $17.50 an hour for her services. This figure is taken from the accountant’s report tendered by the appellant at trial (Blue AB 113). The rejection of the accountant’s evidence does not preclude reliance upon this admission as having at least some probative force.
46 In my view it cannot be shown that the award of a $50,000 cushion involved appealable error.
47 I would make the following orders:
1. Appeal allowed in part.
2. Substitute a verdict of $342,856 for $315,006.
3. Respondent to pay appellant’s costs of the appeal.
48 SHELLER JA: I agree with Mason P.
49 FITZGERALD JA: I agree with Mason P.

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