Davies, L. v Ninness, G.M

[1986] FCA 105

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CATCHWORDS

Damages - award for personal injuries - plaintiff 66 years of aqe

at time of trial, 60 years of aue at date of injury - serious

injuries to left arm - other injuries resulting in permanent pain

and disability. including double vision	-	award reduced	- no
question of principle.

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! LESLEY DAVIES v. GWENDOLINE MFlY NINNESS

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No. ACT G48 of 1985

Coram: Sheppard, Neaves and Pincus JJ.

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I	Date : 6 March 1986
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Place: Canberra
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IN THE FEDERAL COURT OF AUSTRALIA ) )

PUSTRALIAN CAPITAL	TERRITORY	)
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G48 ACT DISTRICT REGISTRY No. of 1985 1,; '

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GENERAL DIVISION	)
BETWEEN :

LESLEY DAVIES

Appellant

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GWENDOLINE MAY NINNESS

Respondent

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J W E S MAKING ORDER: Sheppard, Neaves and Pincus JJ.

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DATE OF ORDER	: 6 March 1986	l >
WHERE ORDER MADE	: Canberra

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The appeal be allowed.

2 . The amount of the judgment entered in favour of the

respondent in the Supreme Court of the Australian Capital

Territory be varied by substituting for the amount of

$90,300, the amount of $64.670.

3 . The respondent pay the appellant's costs of the appeal.

: - N Settlement and entry of orders is dealt with in Order 36

of the Federal Court Rules.

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i IN THE FDERAL COURT nF AIJSTRAJ31A )

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AUSTRALIAN CAPITAL TERRITORY 1

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I DISTRICT REGISTRY 1 No. ACT G48 of 1985

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DIVISION GENERAL 1

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! B E T E E N :

LESLEX DAVIES

Appellant

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GWENDOLINE IGY NINNESS

Respondent

C m : Sheppard. Neaves and Pincus JJ.

- D : 6 March 1986

REASONS €OR JUW;MENT

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THE COURT: This is an appeal from a judument of the Supreme

Court of the Australian Capital Territory (Gallop J.) by which it

I was adjudaed that the respondent should recover from the

appellant the sum of $90.300 by wav of damaues in respect of

personal injuries suffered bp the respondent in a motor accident.

Neither before his Honour nor before us was there anv issue of

liability. The case was one for the assessment of damaues only. t

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I	The respondent was born on 21 November 1918.	At the time of
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the trial she was 66 pears of aue. She was injured in an

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accident which occurred on 2 1 J u l v 1979. The writ in the

proceedinas was issued on 22 September 1983 probably because the

respondent's advisers were waitinu for her iniuries to settle

before proceedina to have her damaues assessed. The respondent's

husband was killed in the same accident.

After a period in hospital she returned to her home at

Swansea near Newcastle in New South Wales. His Honour summarized the injuries suffered by the plaintiff as follows:-

1.      An open fracture of the mid-shaft of the humerus of the left

arm with damaae to nerves of the upper arm, particularly the

radial nerve.

2.       A fracture of the riuht collar bone.

3 . Lacerations over the left eye and to the back'of the head.

4 .       A head iniury causina disruption to her vision.

5. Emotional shock.

The respondent spent 24 days in the Royal Canberra Hospital.

On discharae she went to the home of one of her sons in Canberra.

She staved there for about five weeks under the care of her son's

wife. The respondent was not able to look after herself

properly. She also noticed that her vision was blurred and that

when she could see. she had double vision. Her dauuhter-in-law

bathed her. helped her with her meals. dressed her and uenerally

supervised her convalescence. The respondent was verv depressed.

sick and tired and constantly in pain.

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3.

One of the respondent's principal problems was the iniury

caused to her left arm. Whilst she was in the hospital in

Canberra an operation had been performed in which an

intermedullarv rod was inserted. On 2 November 1979 the

respondent was admitted to the Royal Newcastle Hospital where Dr.

Ostinga. an orthopaedic surueon. performed zin operation on the

left humerus. He excised the nail and inserted a compression

plate. At operation he found wide separation of the bone ends of

about 3 centimetres. As mentioned, the fracture of the humerus

was complicated by damaue to nerves of the upper arm particularly

the radial nerve. After prolonued treatment, includinu

physiotherapy. the plate worked free and the bone waft failed. I

The respondent was readmitted to the Newcastle Hospital on 24

March 1980 when a second bone araftina procedur'e was performed

usina a laruer plate and more screws. The procedure was

technically satisfactorv. but as time went on it became obvious

that it was also failing. A third operation was performed on 27

April 1982. At this operation a bone stimulator was used and

satisfactory union of the humerus was achieved. In July 1982 the

stimulator was removed. On each occasion after the initial

operation in Canberra the respondent was in hospital for about

one week. The operations were performed under ueneral

anaesthetic. The donor sites were respectively from the

respondent's left hip. riuht hip and pelvis.

The respondent's left arm was supported in a slinu all the

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time after the accident, until after the stimulator was removed in

July 1982. She still uses the slinu when she uoes out of the

house because of the support to the arm which it uives her.

His Honour made findinus as to the respondent's residual

disabilities. He said that tkie appellant had submitted that not

all the respondent's complaints of residual disabilities were

supported by the medical evidence. The findinus which his Honour

made were as follows:-

1. The respondent has lost a considerable amount of movement and

power in her left arm. She can raise it forwards and

sideways to about waist level but cannot lift it in front of her bent at the elbow hiuher than shoulder level without the assistance of her riuht hand. She is severely restricted in her pre-accident leisure activities of sewinu. knittina and crochetinu because her left arm aches. She aets pins and needles riuht down the arm into her finuers nearly every day. The respondent nevertheless has a full ranue of movement in	;'.	.
her left elbow and shoulder. His Honour said that she ate

mainly with her riaht hand and, when she did use her left

hand, she bent down towards the food rather than liftinu the

food towards her mouth. She did her own shoppina and walked

about one mile from her home to the shops pullinu a trolley. F

She had the shop deliver purchases once a week. In her

!	kitchen activities she avoided anv heavy liftina.
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2. The Lracture of the riuht shoulder was never treated. It was left to knit of its own accord but has never done so. His Honour found that the respondent had been left with a very larae bonv bridae extendina superiorly and posteriorlv over the back of the clavicle. The associated swellinu pushes on

structures in her neck and causes pain and discomfort.

Medical evidence accepted by his Honour was that the

respondent has the choice of havina the swellinu removed,

therebv alleviatina the effect of pressure. However. this

may leave her with an unstable fracture of the clavicle.

ununited. and may require bone araftinu. The preponderance

of medical opinion is that she should avoid havinu further

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suraery to the clavicle on the riuht side. The respondent

has lost power in her riuht arm and has the pain and swellinu

in her neck earlier referred to.

3 . His Honour accepted evidence aiven by the respondent that. in

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addition to the pain on the riaht side of her neck. she also .I :

suffered pain in the cervical spine. This was due to a

deaenerative condition of the spine which was aagravated bp

the injury sustained in the accident. His Honour thouuht the

condition unlikely to improve and was likely to remain much

the same for the rest of the respondent's life.

4. The respondent has constant pain in both hips from the bone

arafts. She takes four pain killers per	dav - two in the
mornincr and two in the evenina.

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5.  The respondent has a scar over her left eyebrow about five

centimetres (two inches) in lenuth which is not obvious and

tends to be obscured by her crlasses. The respondent also has

a scar on the back of her head which is within her hairline

and is not ordinarily visible. She has a scar on her left

bia toe. She has a lonu scar to the left humerus extendinu

up to the shoulder.

6 . The respondent has double vision for which no treatment can

be prescribed. His Honour described this disabilitv as one which was "quite annovina and can be cripplinu at times". The respondent does not watch as much television as before

the accident and she has tended to miss her step from time to

time, fallinu at kerbs. She has to take special care when

walkinu down steps. She has not driven a mot'or vehicle since

the accident because she cannot see properly. She does not

think that her arms would enable her to handle the steerinu

wheel in any event.

7. The respondent has shootinu pains over her left eve two to three times per week.

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The respondent cannot play cards because she cannot shuffle inability to use her arms.

The respondent made a substantial claim for the cost of

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domestic help. Thcre was first of all a claim. made pursuant to

the decision of the Hiah Court in Griffiths v. Kerkemever (1977)

139 C.L.R. 161. for the period of five weeks durinu which she was

looked after by her dauuhter-in-law in Canberra. His Honour

allowed $500 for this claim. The only challenae to it was based

on an absence of particulars prior to the trial. No application

for an adjournment of the trial was made as a result of the late

furnishinq of particulars, nor was it suauested that the

appellant was otherwise embarrassed. There	is	no reason for
disturbinu this part of the assessment.

Pursuant to the same principle, his Honour allowed the

respondent $6,000 for assistance rendered her by her sisters over

the last five years or so durina which she has been in Newcastle.

The amount was arrived at by allowina two hour's a week at the

rate of $9.50 per hour. Other sums allowed her for the past were

an amount of $300 for delivery charaes made for deliverina her

shoppinu and $1.500 for uardeninu expenses. No substantive

challenue to the inclusion of these items in the award was made.

Complaint was. however. auain made of the failure of the

respondent's solicitors to provide particulars of them before the

trial. In our opinion that circumstance provides no basis for

this Court's interference. The award should not be disturbed	so
far as these items are concerned.

A more contentious matter concerns a claim made by the

respondent for cleanina down the respondent's weatherboard house

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due to J. black film which develops on the house in the Swansea

area. The film is no doubt caused as the result of the

operations of a number of industrial undertakinas in the area.

The respondent aave evidence that she and her husband used to do

the work themselves. Her husband used to do the top part of the

house and she the lower part.' No cleaninu work had been done

down to the time of the hearinu. The claim which his Honour

allowed was all in the future. Evidence was given that the cost

of cleaninu was $160 twice each vear. His Honour allowed the

respondent the sum of $320 per year for the work in the future. .?'

His Honour lumped toqether the continuinu expenses he thouuht

the respondent would incur for household help. delivery charues.

aardeninu and house cleaninu. These came to $1.655 per vear.

His Honour said that the life expectancy of a 66'year old female

was 16.38 years according to the Australian Life Tables. He

concluded that, allowinq for the vicissitudes of life and a

chancre in the respondent's livina circumstances once she became

older, that she should be allowed twelve years expenses in the

future. He said that that multiplied out to $19.860 which he

rounded off to $20.000.

His Honour noted that medical expenses paid bv the appellant

on behalf of the respondent amounted to $11,352.56. These were

not included in the award.

His Honour's provisional assessments of the various

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components makinu up the award were as follows:-

$50.000.00	damaaes	"General
Domestic assistance uiven by
'the dauuhter-in-law 500.00
Domestic assistance rendered
by the sisters in the past 6.000.00

charges delivery Past 300.00

uardeninu	expenses	1.	500.00	Past
Future expenses for domestic assistance. delivery charues.

uardeninu and house cleaning 20.000.00

Total $78,300.00"

His Honour considered the fiuure of $78,300 as a ulobal sum

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and thouuht it safe to confirm his provisional as'sessments. On 9

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July 1985 he aave judFent for the respondent in the sum of

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$78.300.

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He invited submissions on the question of costs pnd counsel

then raised with his Honour the question of interest on ueneral

damaues in respect of the past. His Honour thouuht it

appropriate to apportion. for the purposes of interest. the sum

of $50,000, by treating $30,000 of it as appropriate for the past

and $20,000 as appropriate for the future. He assessed interest

1	I	at the rate of	7 per cent on	$30,000 for a period of	5 314 years.
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I	This yielded a fiuure of $12.075.	He	rounded	this	off to
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i	$12.000. vacated his earlier order and added the sum of $12,000
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to Lhe $78,300 thus reachinu the conclusion that the award of

damaues should be $90.300. He directed iudament accordinuly.

A number of challenaes were made to his Honour's award. In

summary these were:- i

1. His Honour erred in findinu that the respondent had

limitations in the amount of movement in her left arm.

2.   A much reduced fiqure should have been awarded in respect of

the cleaninu of the outside of the house.
3 .	The period of twelve years for which future expenses were

allowed was too lonu.

4.	His Honour was in error in multiplying the fiuure selected as
the annual cost of expenses incurred as a result of the
accident by the number of years for which the claim was accepted. His Honour should have discounted the fiqure in
accordance with the principles decided in Todorovic v. Waller
(1981) 150 C.L.R. 402. The discount factor to be applied was

3 per cent.

5. The overall assessment of $50.000 for qeneral damaaes was

excessive.

6. The selection of $30,000 as the appropriate fiuure for past

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pain. suffering and loss of amenities of life was excessive.

The award of interest on damaaes awarded for these past heads

was not challenged. nor was the rate of 7 per cent per annum.

but it was said that the fiaure upon which the rate of

interest was calculated should be substantially less than

$30.000.

We turn to deal with each of these challenues.

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1. The basis for this submission was apparently conflicting ! '

evidence uiven bv the respondent on the one hand and her

treatinu orthopaedic surueon. Dr. Ostinua. on the other in

relation to the extent of the limitation of movement suffered

bv the respondent in her left arm and shoulder. In her

evidence the respondent said that the arm still had not a lot

of power in it. She complained that she could not do all her

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housework. She said that she could move it to about waist

heiaht but could not lift it right up. She referred	to a
number of household duties as examples of the problem she

had. One of these was hanainu washinu on the line.

Accordinu to her evidence, she has to put her left hand on

the line when it is low and then lift it up. So lonu as it

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remains there she can use it to peu out the clothes bp

passinu them to the left hand with her riuht hand. But if

the hand comes off the line it falls down and she cannot use

it. The respondent also said that she cannot move her left

shoulder fully.

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In a report dated G March 1985 Dr. Ostincra said that the

respondent presented with a full ranue of movement of the

shoulder and elbow. He said there was weakness in the arm

due to scarrinu of the muscle on the left side. He added,

"The weakness however is only fairly mild". In his oral

evidence he said:-

"Well. Mrs Ninness is not a complaining type

actually. When I saw her last , I think in March

1985, she said that she had a full range of

movement in her shoulder but she did complain of

some weakness in the arm and she said that she

crot some achinu. I believe, at that time and this

is common after fracture with chanues in weather

and so forth. And that was about the extent of

her symptoms that she told me."

Later Dr. Ostinua said:-

"Well, if I may say. Mrs Ninness is elderly, she

has been rendered a widow by the accident. She

has reason to have pain in her neck, her left arm

and her right clavicle. There is probably some

limitation of movement in the left arm which she

had become aware when she tried to do the

uardeninu. Althouah she could so some thinus in

the uarden I do not think she could	do any heavy
work. "

His Honour's resolution of this apparent conflict in the

evidence was as follows:-

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"I turn to her residual disabilities. The

defendant submitted that the plaintiff's

complaints of residual disabilities were not

supported bv the medicdl evidence. I therefore

make the following findinus of fact in relation

to her left arm. She has lost a considerable

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amount of movement and power in the left arm.

She can raise it forwards and sidewavs to about waist level but cannot lift it in front of her

bent

at the elbow hiuher than shoulder level I'.

without the assistance of her riuht hand. She is

severely restricted in her pre-accident leisure

activities of sewinu. knitting and crochetinu

because her left arm aches. She uets pins and

needles riuht down the arm into the finuers i

nearly every dav. She has a full ranue of

movement in the left elbow and shoulder. She i;;

eats mainly with her riaht hand and when she does

use her left hand she bends down towards the food

rather than liftinu the food towards her mouth.

She mostly does her own shoppinu and walks to the

shops about one mile from her home pullinu a

trolley. She has the shop deliver her purchases

once a week. In her kitchen activities she

avoids any heaw liftinu."

In the submission of counsel for the respondent his Honour's

findinus are themselves inconsistent. Counsel pointed

particularly to two sentences in the above quoted passaue

from his Honour's judqent. The first was, ' "She has lost a

considerable amount of movement and power in the left arm". The second was. "She has a full ranue of movement in the left elbow and shoulder".

We do not perceive any conflict in what his Honour has said.

In the first of the sentences he is dealinu with the problems

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which the respondent has in relation to movement and power in	i
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her left arm. Loss of power, it will be recalled, was. in

the doctor's opinion. due to scarrinu of the muscle, not to

any injury to the elbow or shoulder joint. In the second of	>-
the sentences he is dealing only with the ranue of movement	l
which she has in those joints. There is, nevertheless,

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conflict between Dr. Ostinua and the respondent as to the

deuree of weakness in her left arm. In the doctor's view the

weakness is now mild. This was not the view his Honour

accepted. "his was sonethinu his Honour was entitled to do.

it beinu open to him to accept. as he did, that the

respondent does have the serious limitations in movement in her left arm to which she deposed. To the extent that that

evidence was in conflict with the views of Dr. Ostinqa. it

was open to his Honour to accept the respondent's evidence

and discard Dr. Ostinua's evidence.

In our opinion the submission that his Honour erred in

findina that the respondent had serious limitations in the

amount or degree of movement in her left arm should be

rejected.

2 .   As mentioned. his Honour allowed the respondent the sum of

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$320 per pear for the cost of cleaning down her house. This

was on the basis that the cost would be $160 twice each year.

Before the accident the respondent and her husband used to do

this cleanins. The husband would do the upper part of the

house and the respondent the lower part. The respondent at no time did the work which the husband did and it is not suuuested in the evidence that she was ever capable of doinu

it. no doubt because of the need to stand on ladders or

scaffolding. The work which the respondent presentlv has

done is the work of cleaninu the whole of the house, not just

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so much of it as was formerly done by her husband. Plainlv

she would not now be able to carry out the work of cleaning

the lower part of the house because of the various

disabilities which she has. It was no doubt upon this basis

that his Honour included the amount in the award. but we find

it difficult to see how the inclusion of the total cost of

cleaninu the house could be justified. If the respondent had

not been injured. it may be that she could have enuaued

someone to help her clean the house, she doinu the work which

she used to do with her husband and the other work beina done

by the hired help. The cost of doing work formerly done by

the husband is not a recoverable item in this action which is

an action to recover damaaes as a result of the iniuries

which the respondent has sustained. It follows that the most

which the respondent should recover in resp'ect of this head

of claim is the cost of the cleaninu work which she herself

cannot do as the result of her iniuries. There is no direct t - .

evidence on the point but in round terms the amount would be

$160 per year rather than the $320 per year allowed by his Honour. The second submission ouaht therefore be upheld.

3 . His Honour reached the conclusion that the continuing

expenses to which the respondent would be put for household

help, delivery charaes, uardeninq and cleaning down the house

would be $1.655 per pear. For reasons uiven this sum should

be reduced by $160 to $1.495 a . per pear. roundlp $1,500 per

year. His Honour allowed these expenses for a period of 12

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years. As mentioned, the respondent at the time of the

hearincr. was 66 years of age. His Honour's award would

therefore include an allowance for these expenses until the

respondent attained the aue of 7 0 years.

The period of 1 2 years is challenued on the basis that it

would be unlikely that the respondent would have been able to

continue her pre-accident lifestyle for as lonu as 12 pears

except by providinu herself with assistance of the kind found

necessary by his Honour. In other words it was submitted

that the probabilities were that, had the respondent not been

injured. she would not have been able to do all the household

cleanina and uardeninu work and also the cleaninu down of the

house herself for a total period of 1 2 years. In our opinion

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there is force in this submission. The mat'ter calls for an	I	.
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exercise in judqment. His Honour's views ouuht not be

disturbed unless we are clearly of opinion that the takinu of

a period of 12 years discloses error. Upon reflection we are

of that opinion and we substitute a period of six pears for

the period of 12 years selected by his Honour.

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On that basis the entitlement of the respondent to moneys for j :

future expenditure is an entitlement to $1,500 per annum for

a period of six years.

The three per cent tables available to us uive the present value of $1 per week rather than $1 per year. "he present

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value of $1 per week for six vears is $286.90. Fifteen

hundred dollars per year is equivalent to $29 per week (to

the nearest dollar). The present value of $1,500 per year

for six years is. therefore, approximately $8,320. That sum

I	should	be	substituted	for	the	amount	of	$20,000	included	in
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the award by his Honour for future expenses.

,	5.	The question arises whether the award of ueneral damaues of
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I	$50.000 was excessive. We have earlier described the very
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bad time throuuh which the respondent had been up to the time : .:

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of the hearina. Not only was she involved in a very

distressinu accident: there were arave problems in treatina

her. The respondent has an expectancy of 16 years. She

still has a riuht clavicle which is not mended. She has the

limitation of movement in her left arm to which reference has

been made. She has pain in her neck.	All these conditions	/ '
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remain permanent. Lnto the baraain she has double vision -

which is also a permanent condition and seriously affects her

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enjoyment of life. That condition will continue to affect

her for the rest of her life and will increasingly do so as

her aue causes her to lead a more sedentary life than she has

done in the past. That will be because pastimes such	as
watchinu television. sewinu. crotchetinu and plavina cards

are either denied her or made difficult for her to enjoy.

All that havinu been said, we are nevertheless of opinion

that the sum of $50,000 for qeneral damaaes was too hiah.

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One matter we have taken into account in t-Pachinu t h a t

conclusion is that there will be included in the award a not

insubstantial sum for past and future domestic assistance.

delivery charues and uardeninu expenses. The moneys so

awarded are included to compensate the respondent for her

inability to do many of the thinus she would. but for the

accident. have been able to do for herself. Such an amount

beinu included in the award. one has to be careful. when one

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comes to the question of general damaues, that one does not

fall into error by failinu to allow for possible

over-lappinq.

The exercise of awardinu ueneral damaues is very much an

exercise of judament and minds will often differ as to what

is an appropriate fiuure. At the appellat'e level a court

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ouuht not to interfere unless it is clearly of opinion that I

the amount of the award is such that it itself discloses

error. Awards of damaaes to plaintiffs who suffer little

economic loss and who are in the later years of their middle

acre, or who are elderly. are notoriously difficult.

Obviously one of the matters which must be taken into account

as a reducinu factor is the aue of the plaintiff. simply

because of the reduced life span such a plaintiff will have

compared with a younuer person. Notwithstanding the

difficulties and uncertainties to which we have referred. we

have reached the conclusion. as we have said, that the award

of $50,000 for ueneral damages was appealably hiuh. We

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propose to reduce it to $40..000..

6. Our conclusion in that reuard makes it necessary to reduce

the amount upon which interest is to be awarded. We think it

appropriate to apportion the sum of $40,000 for ueneral

damacres equally between the past and the future.

Accordingly. the amount to be included in the award for

interest will be $8,050 rather than $12.000, arrived at by

calculatinu interest at 7 per cent per annum on $20,000 for 5

314 years.

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It follows that the appeal must be allowed and the amount of	i
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the iudament entered in the Supreme Court varied bp the

substitution of the sum of $64,670 for the sum of $90,300. The

amount is made up as follows:-

General damages $40,000.00

Domestic assistance criven by the

daughter-in-law 500.00

Domestic assistance rendered by

the sisters in the past 6,000.00

Past delivery charges 300.00

Past aardenina expenses	1.500.00
Future expenses for domestic

assistance. deliverv charues.

aardenina and house cleanina, 8.320.00

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Interest 8,050.00

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$64,670.00

The respondent is to pay the appellant's costs of the appeal but we would arant to the respondent a certificate pursuant to sub-sec. 6(2) of the Federal Proceedinss (Costs) Act 1981.

I cel-rity thac thls and che f 'r preced1r.g

pages are a true copy of the reasons for

judgment herein of the Court

&d.mL-

Associate

6 /YARCI~ 1986