Cash Palace Emporium Pty Ltd v Bartholomew

[1999] NSWCA 359

CITATION:	Cash Palace Emporium Pty Ltd & Anor v Bartholomew [1999] NSWCA 359
FILE NUMBER(S):	CA 40741/98
HEARING DATE(S):	27 July 1999
JUDGMENT DATE:	29 September 1999
PARTIES :	Cash Palace Emporium Pty Ltd James Phillips v Penny Bartholomew
JUDGMENT OF:	Mason P at 1; Sheller JA at 78; Giles JA at 79

LOWER COURT JURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S) :	CLD 56/95
LOWER COURT JUDICIAL OFFICER:	Greg James J

COUNSEL:	A: AR Ashburner, SM Kettle R: P Webb QC, N Canosa
SOLICITORS:	A: Ferguson Holz, Sydney R: Williamson Isabella, Dapto
CATCHWORDS:	MOTOR ACCIDENT - Injuries and ongoing disabilities - Which injuries directly caused by the accident - Whether the respondent was already permanently unemployable at time of accident - Extent to which pre-accident personality and problems were affected by the accident; DAMAGES - Award for future economic loss - Whether respondent would have worked until age 60 or 65 - Whether to allow for promotion, overtime or other allowances - Whether to allow for superannuation loss in the future - Whether resourcefulness of respondent taken into account in allowance for vicissitudes of life - Whether proposed career change taken into account - Impact of medical history and personality problems on employability - Whether trial judge failed to appreciate and act upon the significance of primary facts he had found; DAMAGES - Award for past economic loss - Whether trial judge’s prognosis of respondent’s pre-accident earning capacity revealed appealable error ; DAMAGES - Award for non-economic loss revealed no appealable error; DAMAGES - Challenge to award of future out of pocket expenses - Whether sufficient evidence on this point.
CASES CITED:	Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485
DECISION:	Appeal upheld in part

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40741/98
CLD 56/95
MASON P
SHELLER JA
GILES JA

Wednesday, 29 September 1999


CASH PALACE EMPORIUM PTY LIMITED & Anor
v Penny BARTHOLOMEW
JUDGMENT

1    MASON P: The respondent was injured in a motor vehicle accident on 28 June 1994. The appellants were the owner and driver respectively of a car which crashed at considerable speed into the rear of the respondent’s vehicle when it was stopped at traffic lights. Liability was admitted. 2    The appellants accept the primary findings of fact made by Greg James J. Most of the facts were not in issue. Some were resolved in the respondent’s favour on the basis of acceptance of the respondent as a credible witness and preference for the evidence of the respondent’s treating doctors over the evidence of the appellant’s doctors. 3    The respondent was 38 at the time of the accident and 42 at trial. 4    Immediately after the accident the respondent suffered pain in her neck, pins and needles down her right arm, and damage to her left knee which had struck the dashboard. She experienced pain in the right hip when weight bearing, together with pain in her lower back. She also suffered continuing pain to her left knee, pain in her right shoulder near the clavicle and down her sternum. She was taken on a stretcher to hospital. X-ray revealed no fracture or dislocation. 5    The learned trial judge made the following findings as to the medium-term impact of the accident:

The following day she attended her general practitioner, Dr. Vesey. She developed tinnitus in one ear for which she was referred to an ENT specialist, increased pins and needles effect down her arm and pain in her neck together with a cold sensation up the back of the neck and over the top of her head. Her neck was very sore and stiff and upon turning it she became dizzy. Her sight was affected such that things would drift across her vision and she would experience a throbbing sensation. She experienced pain in her lower back, particularly when trying to do things like making her bed, which involved bending, and pins and needles down her right leg. The pain to her right shoulder and right clavicular area and sternum ceased after about six to eight weeks but she additionally suffered pain in her right hip in the groin area which was different in area and nature to that she had previously suffered. Her left knee was still sore and started to stick and give way on her and develop swelling within two weeks of the car accident. The pain and swelling were in a different area to that which had existed previously in relation to the left knee. She developed severe headaches with blurred vision, dizziness, nausea and vomiting from about two weeks after the accident. These headaches were incapacitating. Although she has had headaches previously during her life, they were different in nature and much less painful. The new headaches were associated with intense pain and dizziness. She has been treated for those headaches by her general practitioner, Dr. Serisier and Professor Lance.

6    The trial judge accepted the respondent’s account of her condition and disabilities. He found that it was supported by the medical evidence which he accepted, particularly the evidence of her regular treating doctors, Dr Vesey and Dr Pickering (see RB75). 7    Dr Vesey initially diagnosed whiplash injury together with soft tissue injuries of the chest, shoulder and hip. Later he referred the respondent to Dr Loane for tinnitus and vertigo and to Dr Dragutinovich for post-traumatic stress disorder including fear of driving. She manifested continuing pain in her neck and lower back, restricted use of her arms and restricted neck movements and dizziness. 8    Dr Vesey was of the view that the injuries and ongoing disabilities were directly caused by the accident. He considered that the respondent’s future employment capabilities were affected as was her ability to complete her University studies due to inability to use a computer keyboard. In May 1995 Dr Vesey observed that the respondent was suffering from symptoms of depression directly attributable to the accident. Over a year later, he noted that the pain, the weakness and paraesthesia in her arms and the pain in her neck had not improved. On MRI scanning of her cervical spine there were small posterior annular tears of the C5/6 and C6/7 intervertebral disc with osteophytic narrowing of the right C5/6 foramen which had been relieved, in his view, to the extent of approximately 70% by the cervical decompression and fusion performed by Dr. Stening in August 1995. 9    There was also increasing lower back pain. The hip pain had continued and was quite severe. Frequent migraine headaches had become a major problem and there was pain in the right hip which, in his opinion, was due to early osteoarthritis. He was of the view that the disabilities were ongoing with a most guarded prognosis. 10    In May 1998, he concluded that the respondent continued to suffer as earlier described, that she was physically fit to drive subject to her post-traumatic stress disorder, that the pain in her neck and lower back restricted her activities within the house, that the migraine headaches required both prophylactic medication and intramuscular injections of Pethidine and Stemetil. These occurred at least once a week. The conditions previously noted continued and there was supra-patella swelling with pain and tenderness of the left knee. The rheumatoid arthritis he noted had been significantly more active and he was of the view that it was possible that the stress and injury sustained precipitated the exacerbation of that condition. He was of the view that the other conditions should be considered permanent and directly attributable to the accident. 11    Dr Vesey commenced treating the plaintiff in January 1993. Thereafter she was treated by him at his practice continuously until 27 January 1994 and then from 24 June 1994 until the hearing of the proceedings. 12    Dr Vesey confirmed that although he originally considered that her headaches were unrelated to the accident, he changed his view on the basis of the assessments made by the two neurologists, Dr Serisier and Professor Lance. He explained that the cervico-genetic component referred to by Dr Serisier meant that the migraine headaches were related to her neck. 13    Dr Stening who advised and performed a spinal fusion and decompression in August 1995 was of the view that the respondent had sustained a hyperextension/ hyperflexion injury of her cervical spine in the context of a pre-existing degenerative change at the C5/6 level, and that there was a musculo-ligamentus injury to her lumbo-sacral spine with an annular tear at the L4/5 level. This tear was not amenable to any form of surgical treatment. He believed that the osteoarthritis of the hip joint could be contributing to most of the respondent’s symptoms and related to her low back pain. He was of the view that she had a 35% permanent impairment of the neck and a 20% permanent impairment of the back. Her low back symptoms partly related to her lumbar spine and partly related to osteoarthritis of the hip joint which was not related to the back, although the osteoarthritic condition of the right hip joint may have been aggravated by the accident. He declined to express a view on loss of efficiency of the leg or a conclusion as to the aggravation of the osteoarthritic condition. 14    Professor Lance considered that the cervical spondylitis and migranous headaches had been precipitated by the car accident and whiplash injury. 15    Dr Pickering, whose evidence was accepted in terms (RB75), is a psychiatrist who in July 1996 diagnosed post-traumatic stress disorder as a direct result of the motor vehicle accident. He thought the prognosis was not particularly good. In his view, the respondent was unlikely to undergo significant recovery within the foreseeable future, ie within the next 3 to 5 years. Dr Pickering read 15 medical reports supplied to him. On the basis of this material he expressed the view that the respondent’s residual symptoms of post-traumatic stress disorder arising from the accident were likely to persist to a significant degree. 16    Dr Pickering addressed the respondent’s pre-existing personality disorder difficulties (to which I shall return). He adhered to his opinion that the respondent suffered from post-traumatic stress disorder and that it would not go away when the litigation was complete. He was of the view that, absent the effect of the accident, the respondent would probably have had little difficulty getting work but would have had difficulty in retaining work. 17    Other doctors gave evidence of the adverse psychiatric impacts that the accident had upon the respondent who, on any account, was in a vulnerable condition prior to the accident (see RB65-66). 18    The accident has had a catastrophic and permanent impact upon the respondent’s life and employability. The primary judge described it in the following terms (RB 36-7):

She has been depressed and angry ever since. She has lost her profession, her academic involvement and her home. She is unable to work in any permanent job or do any task involving physical effort or work for any length of time even at work to be performed sitting and would require, if housed by herself, assistance for shopping, in the garden, for maintenance and housework.
She has not been employed since the accident and has abandoned her studies, being forced to sell her house for lack of adequate finances and losing the prospect of recreational gardening, as well as the enjoyment of a trip to the Himalayas and her former activities of horse riding and walking. She is only able to do lighter housework but it takes a long time since she needs intervals of rest. She now walks only with difficulty and with a stick. Her independence is diminished. She has lost the access to computers she had at work or at the university since she is no longer employed or studying.


Physically, she is drastically cut back in her ability to use a computer, if she had access to one, since she cannot sit for long at a keyboard or using a mouse. For computer use she needs a voice operated programme and suitable hardware. Her reading and doing jigsaws, all of which she enjoyed has been seriously curtailed and she has given up baking and selling Christmas cakes for charity. These effects now appear permanent in the sense that there appears little prospect of improvement in the underlying conditions in the foreseeable future.

The parties are agreed that following the accident the plaintiff became permanently unemployable in the sense that there was little, if any, chance the plaintiff would ever again achieve remunerative employment of any substantial kind although, of course, as I have noted, they differ widely on the cause.

19    The appellants’ case, at trial and on appeal, did not seriously dispute the respondent’s post-accident disabilities or their impact upon her capacity for gainful employment. The essential contention was that the cumulative effect of the respondent’s pre-accident disabilities, including her asserted defective personality, psychiatric state and history of work disputes, were such that, by the time of the accident, the respondent was already permanently unemployable. I shall return to this submission. 20    Greg James J assessed damages at $674,142 made up as follows:

Past economic loss $125,070
Interest thereon $ 21,430
Non-economic loss
(50% of a most extreme case) $125,000
Past unpaid expenses $ 5,264
Future expenses $159,876
Future economic loss $237,501

$674,142

(I have omitted cents from these figures.)

Challenge to award for past and future economic loss

21    The trial judge rejected the defendants’ general submission of unemployability. He summarised his reasons in the following terms (RB76-77):

In my view, considering the medical evidence I prefer, the pre-existing rheumatic condition, psychiatric conditions and personality defects even in conjunction, do not support the defendants' contention. The plaintiff, but for the accident, had a high probability of further employment, in my view. Having assessed her in the witness box in the light of all the material, including particularly, her own correspondence, the university interviews, the accounts of the Abbotsleigh employment, the assessments done by or for the Illawarra Health Service, and in the light of the 20 year, almost continuous, work history, the drive for additional professional qualifications and the plaintiff's persistent, if not obsessive, will to work (as sometimes evidenced under the most trying circumstances), taking into account the opinions of Dr. Jones and the psychiatrists and the nature and subject matter of the disagreements with employers and co-workers, I conclude that the plaintiff's personality was such that she would have persisted in seeking and obtaining work of some kind whether in counselling or educating or otherwise, in general within the range of her professional qualifications, although that work might have been attended by periodic medical interruptions, altercations and job changes. The very features of her personality to which the submission refers drive the plaintiff to employment and would make her, in appropriate employment, a dedicated and conscientious worker. I find that her skills and qualifications are such that, except for the accident, it is likely she would have found and continued to find work within the general range of her professional qualifications and at a salary and on conditions generally approximating a nursing professional, even if she might have had to change jobs more often than workers would have to in a normal working life.
I do not accept that there was such an absence of available work, even for someone in the plaintiff's position, in some such capacity, somewhere, that she would not have been able to continue working until a normal retirement age of 60, subject to an increased risk of the occurrence of some adverse event.

22    At trial, the appellants had urged the judge to award a “cushion” rather than to assess economic loss in the conventional manner. This submission was rejected in the light of the findings as to pre-accident employability to which I have referred. In argument before us, the appellants suggested a figure of $25,000 (for both past and future economic loss). 23    The respondent qualified as a nurse in England in 1978. Between then and 1993, when her services with the Illawarra Area Health Service (IAHS) were terminated, she worked in a variety of skilled nursing positions (the details are set out at RB43-45). Her qualifications included a Diploma in Nursing from the University of London (1983), a Further Education Teachers Certificate (1985) and registration in Australia as a nurse and clinical nurse tutor. She had experience in midwifery, paediatric nursing and geriatric nursing. In 1993 she completed satisfactorily the first year of the Graduate Diploma in Science, and she transferred to a course leading to a Masters Degree in Science in Public Health. 24    Between 1987 and 1993 she was employed by the IAHS, initially at Wollongong Hospital. During this period she suffered badly from rheumatoid arthritis. There were considerable periods of hospitalisation (WB 439-30). For much of this period she was being treated by Dr Jaworski, a rheumatologist. In retrospect, some of her problems appear to have been related to the medication he was prescribing. In mid 1992 she switched back to Professor Brooks who treated her principally with gold injections. The symptoms improved and at the time of the accident were under control, according to the respondent, Dr Vesey and Professor Brooks, each of whose evidence on this point was accepted by the trial judge.
25    In the meantime, however, the respondent’s rheumatoid condition had a significant impact upon her employment at IAHS. I do not suggest that it alone was responsible for the deterioration of the relationship which culminated in the respondent’s dismissal on 18 February 1993, but it was a significant contributing factor. It obviously affected the respondent’s capacity to relate equably to herself and her fellow workers. 26    The respondent wore arm splints for the relief of pain from this condition during the time she was working as a paediatric nurse at the Illawarra Regional Hospital. Concern about hygiene and worry about exacerbating the respondent’s physical condition were the reasons that led, in April 1992, to the IAHS decision to transfer the respondent from active nursing to medical records administration (see BB 326-7). The respondent was unhappy at having been moved for two reasons: her skills as a clinical nurse were not being utilised and she found the work in medical records boring and strenuous because of the need to go up and down stepladders continually (WB 233). She complained and squabbled with her superiors. Ultimately IAHS dismissed her in February 1993 (BB 330). 27    With the assistance of her Union, she commenced proceedings for reinstatement in the Industrial Commission. Nevertheless, she readily acknowledged in cross-examination that her goal was to obtain compensation (WB 230). The proceedings were compromised in June 1993 on terms that involved payment of a sum of money, withdrawal of the letter of termination and the provision of a favourable reference. 28    In the meantime the respondent had set about a career change. She had, as indicated above, already commenced tertiary studies in Public Health Administration. By mid 1993 she had decided that IAHS had actually done her a favour because the dismissal had given her an opportunity to further her studies and decide where she wanted to go and what she wanted to do (WB 244). 29    In 1993 she made apparently desultory applications for work, consulting inter alia with the Commonwealth Employment Service. She was not at this stage interested in further nursing work (WB 242-244). For some of this period she received unemployment benefits. 30    In early 1994 she commenced work as a housemistress at Abbotsleigh. She supervised 25 girls in Years 7 and 9. The work was fairly strenuous (WB 47, 132) but she had no difficulties with the physical side of it. She used to play hockey with the girls. Indeed, with the consent of Professor Brooks she was training vigorously with a view to a walking excursion in the Himalayas. She was running up and down stairs with a full back pack weighing approximately 28 kilos, horse riding and going on long walks (WB 49-50, 59). 31    The respondent was effectively dismissed from her position at Abbotsleigh in June 1994, only days before the accident. The appellants submitted that the dismissal was a further indication of her personality problems and the difficulties which she would have had in obtaining gainful employment were it not for the accident. The respondent readily accepted that she was not suitable for the particular position, but she denied that the circumstances leading to her dismissal were probative of a general inability to obtain employment. The trial judge found that the circumstances under which she left her employment at IAHS and at Abbotsleigh would have placed her under a severe disadvantage if she were to rely on those employers for a truthful reference in seeking further employment (RB 46). 32    It is clear that the respondent’s intentions at the time of the accident were to move away from her career as a nurse. She set about establishing herself as a sexual assault counsellor. The University course she was doing at the time of the accident was directed to this goal and she had made inquiries about the financial aspects as well. It is clear that she would have continued with this aim for at least some time had she not been injured. It is equally clear that this venture would have been a failure. The respondent accepts this. See also Dr Pickering’s evidence at WB 228. 33    The appellants’ submission that the respondent was effectively unemployable immediately prior to the accident is a hypothesis based upon her medical condition at the time, her rocky employment history in the 1990-1994 period, and the evidence relating to the respondent’s personality and problems unaffected by the accident. The appellants also rely upon the proposed career change, submitting that it should be seen as an admission that the respondent could no longer obtain work as a nurse as well as a factor that would have further contributed to effective unemployability when the respondent would inevitably have “hit her head against the brick wall” of a failed career as a counsellor. 34    The appellants also rely upon the respondent’s failure to get a job in the second half of 1993 as indicative of her inability to do so. It should be said at the outset that there are two difficulties with inferring too much from what happened in late 1993. In the first place, it was the respondent’s apparently unchallenged evidence that studies were the priority at this stage of her life (WB 242). Indeed, she was successful in the 1993 academic year and she had proceeded to a Masters course in 1994. Secondly, the respondent did in fact get a job (at Abbotsleigh) in early 1994, albeit one for which she was not suited. 35    The simple fact is that she made no attempt to exploit her skills and experience as a nurse during the 12 months preceding the accident. But it does not follow that necessity and/or the desire for work would not have driven the respondent back to nursing later in her life. She was a determined single woman. Her unchallenged evidence was that, if her counselling business had failed, she would have returned to some aspect of nursing, possibly in a nursing home or teaching nursing (WB 132-3). Of course, a desire to work is not the same as a capacity to get work or to retain it. But it is a significant start for a person with the physical capacity to work and skills and experience in a particular, though broad, field. The appellants accept that there was a significant demand for nursing services throughout the 1990s. 36    In the passage from the judgment quoted above (par 21) the primary judge found that the respondent’s skills and qualifications were such that, except for the accident, it was likely that she would have found and continued to find work within the general range of her professional qualifications and at a salary and on conditions generally approximating a nursing professional, even if she might have had to change jobs more often than workers would have had to in a normal working life. 37    This is the central finding which is attacked by the appellants. Before addressing that attack, I shall refer to the manner in which his Honour translated the finding into an award for past and future economic loss. 38    Past and future economic loss was assessed by reference to agreed figures referable to the current tax weekly rate (without overtime or allowances) for a clinical nurse specialist ($594 per week), and the current after tax weekly rate for fulltime female ordinary time earnings ($487 per week) (see RB 39-40). There was other material including the respondent’s earnings as a housemistress at Abbotsleigh, but this would have been an inappropriate starting point in the light of the respondent’s own evidence that she was completely unsuited to such a job and that she did not have the slightest intention of ever going back to that sort of work (WB260, 264). 39    Nevertheless, adjustments were made by the trial judge in the light of the evidence and his findings as to the respondent’s pre-accident position. First, vicissitudes were allowed at 30 per cent on the basis that there were

features special to the plaintiff adverse to her continuing to enjoy until the normal retirement age those prospects of working continuously and to that age of a person whose prospects were subject only to [the normal factors taken into account] (RB 78)

40    This approach was consistent with that indicated as permissible in Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485 at 497-8. 41 Secondly, the judge found that the respondent’s expected work life would not extend beyond 60. In preference to the respondent’s claim that she would have worked until 65, his Honour accepted the appellants’ submission that it would have been likely that work would have been less and less available as the respondent grew older; and that it would be expected that she would, because of her pre-accident medical conditions, have grown less and less able (RB78-79). The appellants submit that a working woman’s economic loss is usually calculated on the basis of retirement at age 60, because this is the age at which the incentive of pension would induce retirement. But the approach is not an absolute one (cfMedlin v State Government Insurance Commission (1995) 182 CLR 1 at 24; Balusabramaniam v Sara (12 June 1997, Court of Appeal, unreported)). 42    Thirdly, his Honour adopted a weekly rate $550, which was less than the after tax weekly rate for a clinical nurse specialist. In doing so, he made no provision in respect of promotion nor did he allow for overtime or other allowances. He explained this in the following terms (RB 79):

The prospects of employment also involve the prospect of other incidental entitlements, including sick leave, holiday pay, long service leave, depending on the type of employment and such employment might have been permanent or casual or permanent casual. Interruptions to continuous employment may or may not have exceeded available paid holiday or sick leave or treatment available on workers compensation. I have allowed for all these possibilities in assessing the weekly money value of lost capacity at $550 per week.


(See also RB 83L.)

43    Fourthly, the judge declined to allow superannuation loss in the future (RB 83). 44    These adjustments were not inconsiderable and they reflected the trial judge’s acknowledgment about the limitations of the respondent’s pre-accident employability. They also indicated due appreciation of the relevant legal principle, cited by his Honour, which is stated by Barwick CJ in the following terms in Wilson v Peisley (1975) 50 ALJR 207 at 209:

[W]hilst [the trial judge] realised that the respondent’s pre-existing condition afforded no answer in point of liability to the appellant, yet that condition and its propensity, being something not caused by the appellant and pregnant of the psychological damage to her in the future, in the ordinary course of her life, must be placed in the scales when deciding what sum should be awarded for what the appellant had caused. The trauma of the accident for which the appellant was responsible no doubt made a present reality of that which was ever a real possibility. Thus, whilst the appellant must pay for bringing out that condition, what he must pay, must, in my opinion, justly reflect the fact that that condition was not merely latent in the respondent but that events, not of an unusual or unlikely kind could and might in the ordinary course of life have evoked that condition had not the appellant’s negligence intervened. The judge included this possibility in the vicissitudes of life which he was bound to bring to account in connection with the assessment of economic loss. In my opinion, he was not in error in so doing.

45    The appellants nevertheless contend that the assessment is vitiated by appealable error. Their primary submission is that

The extraordinary array of serious physical and mental problems suffered by the respondent prior to the accident was such that, by the time of the accident, the respondent’s capacity to obtain and retain work in the open labour market was totally, or all but totally, exhausted. (written submissions p1)

46    The appellants refer at pp2-4 of their submissions to a range of physical problems suffered by the respondent unrelated to the accident. Some of these had passed into history, but others were continuing to some degree at the time of the accident. I do not understand it to be submitted that his Honour overlooked these matters, or at least those of any materiality. They are recounted at various places in the judgment, together with an assessment of the medical evidence as to the manner in which the respondent was coping with her disabilities at the time of the accident (see eg RB 47-50). 47    The most significant physical disability was and is the respondent’s rheumatoid arthritis. Professor Brooks, a rheumatologist, diagnosed this condition in about 1987. Thereafter (with one interruption, when the respondent was treated by Dr Dragutinovich) he treated the respondent until he moved to Queensland in 1998. The condition led to bouts of hospitalisation, but it waxed and waned. Generally speaking it allowed the respondent to continue working on a permanent basis, albeit with interruptions for treatment. 48    Issue was joined as to the prognosis of the condition at the time of the accident. The appellants point to the evidence indicating that the condition was affecting the respondent’s ability to work in the period 1988-1992. I have already summarised the key facts (see pars 24-26). It is clear that this condition contributed to the respondent’s interpersonal difficulties with fellow employees and, accordingly, would have impacted upon her capacity to obtain and retain paid employment. Nevertheless, the condition improved after the respondent’s dismissal by the AIHS and prior to the accident. This appears to have been helped by the different treatment prescribed by Professor Brooks under whose care the respondent returned. He had resumed looking after the respondent in the beginning of 1993. He changed the medication prescribed by his immediate predecessor which was causing adverse reactions. The trial judge found that the respondent’s rheumatoid arthritis condition had stabilised to some considerable degree prior to the accident to the point where the pain was tolerable, with treatment needed less frequently (once every four to six weeks). Professor Brooks was prepared to accept that the respondent might make her planned trip to the Himalayas. The evidence about the physical work done at Abbotsleigh further corroborates this finding. 49    Dr Vesey had noted no problem with her arthritic condition when he saw the respondent four days prior to the accident. Except for the reference to the fracture of her fourth toe, she made no particular complaint on that visit and was on gold injections at four weekly intervals, a substantial improvement from the prior position. Dr Vesey believed that the rheumatoid arthritis was exacerbated by the stress and injury suffered in the accident. 50    The principal difficulty with the appellants’ case so far as it relates to the respondent’s physical disabilities is the unchallenged evidence that they had little financial impact upon the respondent’s work history in the pre-accident era. Dr Dragutinovich was correct to describe the respondent’s medical history as reading like War and Peace. But, in the main, it had been (employment) business as usual during the times of medical war. The arthritic condition contributed to the loss of the job with the AIHS, but there was evidence which his Honour was entitled to accept that matters had improved significantly since that time. The respondent may have been a prickly and abrasive personality, but she was also a determined and resourceful one. Despite her physical problems she had 20 years of employment, in the main as a nurse or health professional. The details are set out at RB43-45. His Honour was entitled to take account of this and to place it side by side with the favourable finding as to the respondent’s medical condition in early 1994. 51    It is also relevant to observe that the medical and other evidence led by the appellants in relation to the respondent’s pre-accident condition included favourable assessments of the respondent’s capacity to work in senior nursing positions, notwithstanding her physical disabilities (see RB 66-69, especially the references to the reports of Dr Riordan and Mr Shervington). 52    The appellants’ principal attack related to the evidence about the respondent’s personality problems and their impact upon her employability as evidenced by the circumstances in which she left the positions at the IAHS and Abbotsleigh. 53    The trial judge was certainly aware of the primary facts and he had the opportunity to see the respondent give evidence. He also considered the evidence of the various medical witnesses who attested to her pre-accident personality difficulties and the ways (positively and negatively) that she coped with them. 54    The following findings were made (RB46-47):

Prior to the accident, the plaintiff had suffered numerous medical problems. She had from childhood, a deep-seated psychiatric condition or conditions of borderline personality disorder or dissociative personality disorder. She may have been paranoid. The former conditions are characterised by a lessening of control and a heightened emotional intensity which became particularly linked to her work and study.
I discuss the views of Dr Pickering, Dr Revai and Dr Jones in this regard later in this judgment.
She gave evidence which I accept, that she had been sexually abused when young, occasioning her life long consequences including a particular sensitivity about such matters and childrens' medical problems. No doubt this created a somewhat vulnerable, indeed narcissistic or paranoid personality which developed what were, until the accident, substantial mechanisms (described by counsel for the defendants as ‘manipulative or aggressive’) to enable her to cope even in the context of the various medical conditions she suffered. She coped by manifesting an intense involvement with her work and studies to the point where her whole life and her personality were deeply bound up in them.

55    His Honour’s assessment of the respondent on the basis of her cross-examination was that the respondent (RB 54-5):

was exposed , not as untruthful, but as an aggrieved, difficult, ‘prickly’ personality whose 20 year work and study history was marred by serious altercations. It was apparent that when the plaintiff considered herself unjustly or improperly treated, she considered she was deeply offended against and responded truculently and intemperately, particularly where the matters arose in a work or work related (as her studies were) context. In the main, these disagreements arose in a context in which the plaintiff felt, whether reasonably or not, that incorrect or insufficiently caring medical treatment, industrial relations or academic supervision was being afforded to her or insufficient recognition was being given to matters of professional concern or her own efforts to perform her professional duties. She regarded any criticism of her skill or diligence most seriously.

Whatever the objective circumstances were, in no case does it appear to me that the plaintiff's belief was not genuine but from all the evidence and all the admitted events, I find that the plaintiff, on a number of occasions, had grave difficulties getting on with some of those in authority over her or with whom she worked, and eventually in most of her employment situations, even sometimes after a short while, but more usually after a fairly extensive time, working relations would break down.

56    Further evidence about the respondent’s “dysfunctionality” is recorded in the trial judge’s assessment of the evidence of Dr Pickering (RB 62-4) and Dr Revai (RB 73). 57    The appellants were ultimately driven to attacking the way in which the trial judge dealt with this material. It was submitted that his Honour failed to appreciate and act upon the significance of the primary facts he had found. In their written submissions, the appellants submitted that the respondent’s:

mental problems involved a personality disorder and a dissociative disorder …. She had an immature manipulative personality involving fixed, rigid ideas, and a propensity to come into strong conflict with those with whom she had to deal whose ideas did not sufficiently coincide with her own, including family, fellow workers, work supervisors, treating medical practitioners and university staff. Her mental problems predated the accident.

58    It is one thing for a determined plaintiff to want employment, it is another to get it and to keep it. And it is also not to be assumed without proof that the work likely to be obtained would be commensurate, pay-wise, with that enjoyed in the past. These two propositions lie at the heart of the appellants’ attack on the decision below. 59    The trial judge’s prognosis of the respondent’s pre-accident earning capacity may have been generous but I cannot conclude that it revealed appealable error. His Honour was acutely aware of the respondent’s physical and personality problems pre-accident. He accepted evidence that many of her physical problems were behind her and that her arthritic condition was under control in 1994. Here, the evidence about the strenuous work and play in the Abbotsleigh months is significant. 60    His Honour was also fully cognisant of the underlying personality problems. I have referred already to the findings he made. As regards their impact upon employability, he observed (RB76) that the respondent inspired different reactions from different people. 61    In my view, the challenge to the ultimate findings that underpin the award for economic loss fails for three broad reasons. First, the pre-accident history (though chequered) showed that a combination of skill, experience, drive and manipulativeness had in fact kept the respondent in remunerative employment at commensurate levels for 20 years. True, there were disagreements with superiors and fellow workers, and these accounted for a varied CV. But there was little evidence to show that the pattern would not have continued, albeit with continuing interruptions. 62    Secondly, the trial judge recognised these matters and took them into account in his rejection of the total unemployability submission of the appellants. In my view his decision on this contentious matter should not be reversed, especially since it is an assessment that turns in large part upon the advantage of seeing critical witnesses. In Wynn (at 499), Dawson, Toohey, Gaudron and Gummow JJ said:

As Brennan and Dawson JJ pointed out in Malec v J.C. Hutton Pty Limited (1990) 169 CLR 638 at 640, ‘[d]amages founded on hypothetical evaluations defy precise calculation’. The discount to be allowed for the possibility that the appellant’s previous injury might have resulted in her impaired earning capacity can at best be a matter of impression.

63    Thirdly, the matters complained of were taken into account in the 30 per cent allowance for vicissitudes and the other matters which were reflected in the economic loss calculus (see pars 39-43 above). 64    Nevertheless, I would make one adjustment to the award in relation to economic loss. His Honour’s award did not, in my view, adequately reflect the substantial economic loss that the respondent would have incurred during what would have been a failed venture as a sexual assault counsellor. It may readily be accepted that the respondent would, after a time, have abandoned this venture and sought alternative employment that drew upon her skills and experience. Such work would have been available, and it would not have been confined to the hospital area. But there would have been a significant interim period during which the respondent would have been without remunerative employment at a level commensurate with that of a nursing professional. Prior to the accident she had set her sights upon obtaining the Master’s degree and the proposed business as a sexual assault counsellor. There would have been a significant period of readjustment as the respondent would have been driven to accept that if she wanted well paid work, then her interests lay in returning to nursing or some related career. With the respondent’s personality, this period of realisation may well have taken longer than with others. 65    His Honour made no apparent allowance for this likely trough. Rather, he treated the respondent as if she would have reverted to nursing work shortly after the loss of the Abbotsleigh job. The discount for vicissitudes was confined to the calculation for future economic loss. The other adjustments that were made did not in my view adequately reflect the loss that would have occurred through the respondent’s own decision to try a new career. 66    In my view the allowance of $550 per week as weekly nett loss did not provide sufficiently for the impact of the proposed career change upon earnings in the immediate years from 1994 onwards. And it conceded nothing for interruptions and losses due to illness and the inability to obtain and retain employment as remunerative as that enjoyed by the respondent when with Abbotsleigh or the IAHS. 67    The trial judge was entitled to find that the respondent would not have persisted indefinitely in unremunerative study or business ventures. But his Honour should have severely discounted the lost wages in the years 1994-1998. I would reduce the award of $125,070 for past economic loss by 50 per cent, with a consequential reduction in the interest awarded. The nett reduction is $73,250.

Challenge to award for non-economic loss

68    The finding of 50 per cent of a most extreme case was based on the view that:

… the plaintiff's age, the diminution in life expectancy, her medical disabilities occasioned as I have found by the accident, the pain and what I have held to be the catastrophic effect for the rest of her life, that she has lost, almost certainly permanently, all those things in which she took enjoyment, this is a serious case even when compared to a most extreme case.

See also the findings at RB36-7 which have been set out above (par 18).

69    In large part, the appellants’ challenge to this conclusion reiterates the unsuccessful argument about the extent of the pre-accident condition. 70    The accident had a catastrophic impact upon the physical and psychological state of the respondent. In my view the appellants have not shown appealable error in the conclusions reached (cf Southgate v Waterford (1990) 21 NSWLR 427 at 442-3).

Challenge to award of future out of pocket expenses

71    The remaining grounds of appeal that are pressed concern two items of future out of pocket expenses. 72    The judgment records that it was agreed that the weekly cost of a battery for a TENS machine was $35 and for a consultation with a general practitioner was $37. His Honour calculated future out of pocket expenses on the basis that this pattern of expenditure would continue indefinitely. 73    The appellants submit that there was no agreement and no evidence as to how often a replacement battery was required and that there was no agreement as to how often a consultation with a GP would occur as a result of the accident. 74    This challenge fails. 75    The respondent has demonstrated to my satisfaction that there was agreement that a TENS machine battery would be used in consequence of the accident and that its replacement cost was $5 per day (see WB 402). I accept that there is some ambiguity in the material placed before his Honour. But the unchallenged evidence makes it more likely than not that it was represented to his Honour that agreement had been reached on this matter. More importantly it shows that this was in fact the pattern of usage of the machine and battery replacement cost (see WB 85, BB 91R). 76    As to attendances upon a general practitioner, the respondent’s claim was that one attendance per week was called for in the light of the injuries, and this claim is supported on the evidence (WB 80, BB 129).

Disposition

77    In the upshot the following orders should be made:

(1) Appeal upheld in part.
(2) Substitute a verdict for $600,892
(3) Respondent to pay appellants’ costs of the appeal, but to have a certificate under the Suitors’ Fund Act 1951 if qualified.

78    SHELLER JA: I agree with Mason P. 79    GILES JA: I agree with Mason P.

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