Dray v Collins
[2006] WASCA 15
•1 FEBRUARY 2006
DRAY -v- COLLINS [2006] WASCA 15
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 15 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | FUL:112/2004 | 8 NOVEMBER 2005 | |
| Coram: | STEYTLER P WHEELER JA PULLIN JA | 1/02/06 | |
| 21 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed in part | ||
| C | |||
| PDF Version |
| Parties: | TAMELA LEE DRAY TROY ANTHONY COLLINS |
Catchwords: | Torts Negligence Injury in motor vehicle accident Assessment of damages Whether assessment for nonpecuniary loss was "unreasonably disproportionate" Whether assessments for loss of future or past earning capacity were inadequate |
Legislation: | Motor Vehicle (Third Party Insurance) Act 1943 (WA), s 3C |
Case References: | Andjelic v Marsland (1996) 186 CLR 20 Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 CSR Ltd v Eddy (2005) 80 ALJR 59 Dray v Collins [2004] WADC 149 Graham v Baker (1961) 106 CLR 340 Husher v Husher (1999) 197 CLR 138 Medlin v The State Government Insurance Commission (1995) 182 CLR 1 O'Brien v Dunsdon (1965) 39 ALJR 78 Southgate v Waterford (1990) 21 NSWLR 427 Bowen v Tutte (1990) A Tort Rep 81-043 Watts v Turpin (1999) 21 WAR 402 Wilson v Peisley (1975) 7 ALR 571 Wylde v Arriaza (1997) 25 MVR 539 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : DRAY -v- COLLINS [2006] WASCA 15 CORAM : STEYTLER P
- WHEELER JA
PULLIN JA
- Appellant
AND
TROY ANTHONY COLLINS
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : CRISFORD DCJ
Citation : DRAY - v - COLLINS [2004] WADC 149
File No : CIV 2604 of 2004
Catchwords:
Torts - Negligence - Injury in motor vehicle accident - Assessment of damages - Whether assessment for nonpecuniary loss was "unreasonably disproportionate" - Whether assessments for loss of future or past earning capacity were inadequate
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Legislation:
Motor Vehicle (Third Party Insurance) Act 1943 (WA), s 3C
Result:
Appeal allowed in part
Category: C
Representation:
Counsel:
Appellant : Mr A S Stavrianou
Respondent : Ms B A Mangan
Solicitors:
Appellant : Stoddart & Co
Respondent : Phillips Fox
Case(s) referred to in judgment(s):
Andjelic v Marsland (1996) 186 CLR 20
Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649
CSR Ltd v Eddy (2005) 80 ALJR 59
Dray v Collins [2004] WADC 149
Graham v Baker (1961) 106 CLR 340
Husher v Husher (1999) 197 CLR 138
Medlin v The State Government Insurance Commission (1995) 182 CLR 1
O'Brien v Dunsdon (1965) 39 ALJR 78
Southgate v Waterford (1990) 21 NSWLR 427
Case(s) also cited:
Bowen v Tutte (1990) A Tort Rep 81-043
Watts v Turpin (1999) 21 WAR 402
Wilson v Peisley (1975) 7 ALR 571
Wylde v Arriaza (1997) 25 MVR 539
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1 STEYTLER P: The appellant was injured in a motor vehicle accident on 23 October 2000. The accident was caused by the negligence of the respondent. As a consequence of it, the appellant sustained a number of injuries. She sued the respondent for damages. The respondent admitted liability for the accident. Consequently, the only issues which arose at the trial were whether the appellant had suffered the injuries described by her as a result of the accident and, if so, what damages should be awarded in respect of them. The trial Judge accepted that the appellant suffered the injuries described by her as a consequence of the accident. She awarded the appellant damages amounting to $44,129. The appellant challenges the adequacy of that award.
2 There are four grounds of appeal, a fifth having been abandoned at the hearing. These challenge the awards made for non-pecuniary loss (ground 4), loss of past earning capacity (ground 3) and loss of future earning capacity (grounds 1 and 2). It is consequently necessary for me to say something about the appellant's injuries and their consequences.
The appellant's injuries and her evidence concerning their consequences
3 The injuries sustained by the appellant were soft tissue injuries to the cervical, thoracic and lumbar areas of her spine and to her right shoulder, a minor compression fracture of the upper aspect of the spine at T12, aggravation of a pre-existing non-symptomatic spondylolysis at L5 and various cuts, bruises and grazes. She also suffered from a post-traumatic stress disorder and an adjustment disorder. Immediately after the accident, the appellant was taken to Fremantle Hospital. She was discharged on the same day.
4 In her evidence at the trial, the appellant said that, since the accident and still, she suffered from a dull pain in her back, and from neck and right shoulder stiffness. She also had frequent headaches (particularly when attending lectures and studying or doing University assignments) and suffered neck and back pain if she sat for any long period. Pain had caused her problems in sleeping and she had become a frequent user of Panadol and anti-inflammatories. By the time of the trial, she had had some physiotherapy (for a period of two weeks not long after the accident) and chiropractic treatment and had used a heat pack or a TENS machine in aid of pain relief when necessary. Her partner assisted her with regular massages.
5 In her evidence-in-chief, the appellant said that prior to the accident she had played regular indoor beach volleyball and done a lot of swimming and some running. She had also been a regular attendee at the
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- gym. She said that she was no longer able to do these things because they caused her back pain (although she had recommenced swimming once or twice a week) and that she had put on 15 kilograms in weight. The appellant also said that she was no longer able to walk her dog as often as she had done (he is a big dog who tended to pull on the leash, causing her pain) or to do as much gardening or heavy household duties as she had previously done. She had seen a psychiatrist, Dr Lord, who had suggested that she obtain psychological counselling in respect of her post-traumatic stress disorder. She did not do so, and instead discussed her problems with her partner. These encompassed "flashbacks" which she had had for a year or two in relation to the accident and a lack of self esteem arising out of her increased weight.
6 In the course of cross-examination the appellant conceded that she had played beach volleyball in early 2001, that she had been in the "Premiers A side" in 2001 and that she had played one or two games in 2002. She also conceded that she had started playing touch rugby in about November 2001 and that she had continued to do so until the end of December 2003. She acknowledged telling Mr Peter Bath, an orthopaedic surgeon who reviewed her in January 2004, that she had stopped playing touch rugby, more because of work commitments than because of back pain. She also said, in the course of her evidence, that it was quite possible that her decision to stop playing touch rugby had been influenced by her move to a different suburb. When asked whether a reason for ceasing to swim as much as she had previously done was the fact that she was now working four days a week, she replied, "Quite possibly".
7 In 1997, some years prior to the accident, the appellant had commenced a nursing degree at Edith Cowan University. She completed her first year of study as a full-time student. In 1998 she undertook part-time study. Then, in 1999, she recommenced full-time study, this time at the James Cook University in Townsville, Queensland, where she had moved. In 2000, she returned to Western Australia and recommenced her degree at Edith Cowan University. She completed one semester and then withdrew prior to the end of the second semester. She did so in order to "recollect … [her] thoughts and get some motivation back towards studying". This was on the Friday immediately preceding the day of the accident. Prior to her withdrawal from study, she had taken up a position as a nursing assistant with a nursing agency, Healthstra, through which she was initially given six to seven weeks' contract work with the Silver Chain organisation. She commenced employment with Healthstra in July 2000. She was still employed by Healthstra as a nursing assistant at the time of the accident.
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8 After taking some two weeks off work as a result of the accident, the appellant recommenced work with Healthstra on 7 November 2000. She said that she accepted less work than had previously been the case, although she conceded that it was quite possible that she would have had to reduce her workload in any event upon returning to her studies at Edith Cowan University in February 2001. She completed her nursing degree in December 2002. She worked for Healthstra as a registered nurse, on a casual basis, until May 2003, when she began working as a registered nurse at Fremantle Hospital. She worked full-time (five days a week for a total of 38 hours per week) until 13 October 2003, when she reduced her hours to 30 per week over four days. While she said that this was due to her back pain, she had initially told her employer that this was due to the distance she had to travel to work from her home in Safety Bay each day.
9 In early 2004, she commenced a 12-month perioperative graduate diploma course in order to better equip herself for an area of less physically demanding work. A diploma of that kind would enable her to work in operating theatres, assisting surgeons. Some two weeks prior to the commencement of the trial she had begun working 72 hours per fortnight in theatre. She had not previously intended to work in this area because she preferred the greater level of patient contact obtainable in ward work. However, she believed that it would put less pressure upon her back. She said that shorter operations did not put too much pressure on her back but, towards the end of each week, she became sore. Her back also became sore when she was required to work on long operations.
10 The appellant acknowledged that there were many areas of nursing, aside from hospital work, that were available to qualified and experienced nurses.
The medical evidence
11 The appellant did not seek any medical assistance, apart from her visit to Fremantle Hospital on the day of the accident, until 9 November 2000 when she saw her general practitioner. However, she saw a number of specialists because of her claim in these proceedings. She acknowledged that, had it not been for her claim, she would not have seen these specialists. She had previously seen a general practitioner whenever necessary.
12 The specialists who gave evidence at the trial were in agreement that general medical and surgical ward work in a hospital, involving bending and heavy lifting, was not suited to the appellant and would aggravate her injuries. However, their evidence differed as regards the probable
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- long-term effects of the appellant's injuries and as regards her future work prospects. I will summarise the evidence of each of them, in turn.
Dr Gino Mastaglia
13 The appellant consulted Dr Gino Mastaglia, a physician specialising in rheumatology, on two occasions, being 27 March 2000 and 20 January 2004. He was of the opinion that, if the appellant obtained employment avoiding lifting, bending and the performance of repetitive tasks, she would be able to work full-time. He suggested that work as a nurse in an operating theatre could overcome some of her problems. However, he also suggested that her symptoms of stiffness in her neck and pain in her back might be permanent and that, although these would not necessarily deteriorate in the future, if, over time, they did not settle, early retirement from the workforce might be required. He estimated that she had a 10 per cent permanent disability of the cervical spine, 10 per cent permanent disability of the thoracic spine and a 20 per cent permanent disability of the lumbar spine.
14 Dr Mastaglia recommended that the appellant undertake exercise such as swimming, attending the gym, yoga or tai chi and that she see a psychologist for the management of her post traumatic stress disorder symptoms. He considered that she should "fine-tune" her eating habits and make lifestyle changes to address her concerns about her fitness. He said that, if she became physically fit, the deficient muscles around her spine would improve and her symptoms would decrease.
15 In the course of cross-examination Dr Mastaglia said that, at the time of writing his reports, he had been unaware that the appellant had been playing touch rugby and that she had also played beach volleyball. He had understood that her only exercise had been walking. He said that, if he had had that information, it would have influenced his view about the difference between her pre and post-accident capacity. What the appellant had told him had led him to believe that she had been "in constant distress".
Mr Peter Bath
16 Mr Bath reviewed the appellant twice, on 14 November 2001 and 20 January 2004. He considered that her symptoms of neck stiffness and back pain would be ongoing in the short-term but that they should improve and settle down with time. He said that it was unlikely that the appellant would have symptoms and restrictions of a permanent nature.
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- He considered that her prognosis was good, especially as she had begun to be more active.
17 In his second report, Mr Bath noted that the appellant still complained of back pain arising from the fracture at T12. However, he said that an occupation in nursing which did not involve a lot of bending might allow the appellant to work longer hours. He also said that it had yet to be seen whether she would be able to enjoy working in theatre, where she was able to move about in the theatre complex but would have to stand for some time while assisting in operations. He considered that it would be reasonable to surmise that, given time, the appellant's symptoms would continue to improve.
18 In Mr Bath's opinion there was no indication that the appellant should be directed to any other occupation. His prognosis was that she might have some degree of ongoing lower back pain but, given time, this might not be severe enough to prevent her from carrying out nursing activities "or at least some modification thereof".
19 In his oral evidence, Mr Bath said that he did not consider that the appellant would have a long-standing and substantial disability. He believed that she could work full-time in an area of nursing that did not involve heavy lifting and much bending and suggested, as one such area, theatre work of the kind in which the appellant was currently engaged.
20 Mr Bath had been unaware that the appellant had played touch rugby and beach volleyball after the accident.
Mr Desmond Williams
21 The appellant consulted Mr Desmond Williams, an orthopaedic surgeon, on three occasions.
22 On the first occasion on which he saw the appellant (November 2002), Mr Williams considered that she would benefit from strengthening her back and neck muscles by swimming, and undertaking water aerobics and a pilates programme. He said that she needed to maintain a weight reduction regime.
23 He disagreed with Dr Mastaglia's opinion as regards the extent of the appellant's disability, saying that her permanent residual disability in respect of the cervical spine was in the order of five per cent, representing an "annoying level", but that there could be a thoracic spine disability in the range of 10-15 per cent taking into account potential arthritis if there
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- was no response to conservative treatment. He also disagreed with Dr Mastaglia's opinion regarding the prospect of the appellant's early retirement from the workforce. However, he considered that there might be some deterioration in the appellant's thoracic spine at the T11/12 disc level, where traumatic osteoarthritic changes were currently evident. He said that this might progress and increase the appellant's back pain. He also said that there was the potential for degenerative arthritis to develop after five or ten years at either side of the fracture of the T12 vertebrae.
24 Mr Williams considered that the appellant was capable of working full-time in appropriate nursing programmes and activities, of which he said there were many. These encompassed programmes that did not involve heavy lifting, repetitive bending and working in awkward postures. He believed that the appellant's problems would stabilise over the next six months and considered that, overall, while the injuries might limit her broad range of work capacities, they should not limit her earning capacity "in a range of nursing areas".
Dr David Watson
25 The appellant saw Dr David Watson, a consultant physician, on 11 November 2003. While he mentioned that the T12 fracture might possibly lead to degenerative arthritis, he considered that the appellant's long-term prognosis was good. He said that, in the short term, while the appellant was still involved in heavy bedside nursing, she continued to be troubled by symptoms but that, if she did not work in nursing involving such heavy duties, her disability would decrease and she could work full-time. He thought that lighter nursing work, suitable for the appellant, existed in smaller hospitals or suburbs or in the country or in a number of other areas. He said that there was "absolutely" a shortage of competent and committed nurses everywhere in the system, encompassing the private sector, community nursing and public hospitals.
26 Dr Watson did not anticipate that the appellant would be obliged to retire early from the workforce as a result of her injuries. He said that, if she moved away from bedside nursing, her disability would decrease to a point where it would, at most, be one of five per cent.
27 Dr Watson was unaware, when he wrote his reports, that the appellant had played beach volleyball and touch rugby after the accident. He said that this information would have influenced his assessment. He did not say how.
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Dr David Lord
28 The appellant consulted Dr Lord, who, as I have said, is a psychiatrist, on 28 June 2002. He said that she then continued to experience an adjustment disorder as a result of the car crash but was of the opinion that, from a psychiatric perspective, her symptoms would improve with the passage of time and that her prognosis was satisfactory.
Evidence as regards nursing opportunities which might be available to the appellant
29 At the trial, evidence was given by a number of registered nurses as regards nursing positions which might be open to the appellant. All agreed that medical and surgical wards in hospitals, involving a good deal of heavy physical work, were not suited to nurses with back injuries. However, their evidence differed, to some degree, as regards the availability of nursing positions that would not put a strain on a nurse's back.
30 Two of these registered nurses, Sheena Peters and Eileen Hudson, worked in management positions at Fremantle Hospital. Ms Peters was the coordinator of the hospital's graduate health programme and Ms Hudson was a clinical nurse manager. Both said that their positions in nursing management involved less patient work than normal nursing positions, and consequently less heavy work. However, their positions were only open to more experienced nurses.
31 Ms Hudson considered that, before a graduate nurse could move into the area of management, she would have to become a clinical nurse, waiting some years before she could take on a management position. She said that an out-patient ward in a hospital tends to have a less physically demanding load, but that positions in such a ward were difficult to obtain. She referred to the "crisis" in nursing and to the consequential demand for nurses but said that, in her opinion, there were very few positions in a hospital where nurses would not hurt themselves while working. Such positions were available outside the hospital environment, in organisations such as Silver Chain, which employed nurses to travel to patients' houses in order to care for them. However, she said that there was a good deal of competition for these positions because they involved Monday to Friday work. She acknowledged that she knew nothing about the availability of these positions other than from a community health perspective in the Fremantle Hospital and Health Service.
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32 She said that, if a nurse wished to move into an area of nursing that avoided problems brought about by a mid-back injury, further studies would be required.
33 Ms Peters said that nurses were not generally employed for lighter duties in hospitals and that work in a theatre environment, while different to that in a surgical or medical ward, could also be quite extreme physically. She said, as a generalisation, that the more senior a nurse becomes, the less "hands on general physical work" is required.
34 Ms Peters acknowledged that there were various roles for nurses, outside an acute care organisation, which were essentially administrative or light duty positions.
35 The third registered nurse to give evidence was Ms Lynelle Griffiths, who worked as the staffing coordinator of ACES Nursing Agency, which found replacements or responded to requirements for nurses in hospitals. Ms Griffiths agreed that, while theatre work is less physical than ward work, nurses were nevertheless required to stand for long periods of time. She said that she would not employ a junior nurse who had a history of back and neck problems without a medical clearance. It was apparent from her evidence that her work primarily involved the supply of critical care nurses, although she had also some involvement with community-based nursing. She accepted that less physically demanding nursing roles exist in community nursing. However, she considered that the appellant, because she was still inexperienced, would be unlikely to obtain a community nursing position or a supervisory nursing position.
36 The fourth registered nurse to give evidence at the trial was Ms Barbara Macleod. It is significant that, while the trial Judge merely summarised the effect of the evidence of the other three nurses (Dray v Collins [2004] WADC 149 at [85] - [90] and [97] - [101]), she expressly accepted the evidence which was given by Ms Macleod (at [95]).
37 Ms Macleod had extensive experience in community health and as a community nurse. Since 1996 she had been the owner and managing director of a business called Carealot Home Health Services Pty Ltd. That organisation employed some 110 staff who provided in-home health care to individuals who had either chosen to leave hospital early and have their care at home or who were elderly or in need of palliative care.
38 Ms Macleod considered that there were various areas in which nurses could work in the community that involved less physically demanding duties than working in an acute care environment. She mentioned, as
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- examples, nursing or medical research, involvement in psycho-social issues or counselling, care of patients with psychiatric and mental illnesses, health promotion and "wellness", cholesterol and blood-pressure testing, stress management and the management of other problems such as obesity. She said that work of that kind was increasingly available because there was an increasing emphasis on community care as opposed to the use of hospital beds. She said that there was a continuing opening for nurses to "come out to the community".
39 Ms Macleod was given a copy of the appellant's academic transcript, qualifications and medical reports. She considered that the appellant would not have difficulty in gaining work in community nursing. She said that there was a global shortage of nurses, "hitting a critical mass in probably three to five years".
40 In the course of cross-examination, Ms Macleod conceded that she knew little of the availability of positions in the areas of research or counselling, as these were not her areas of expertise.
41 I have earlier mentioned that, in the course of her evidence, the appellant acknowledged that there were many areas of nursing, apart from hospital work, which were available to qualified and experienced nurses. She said that there was a huge shortage of nurses and nursing assistants and that the understanding that she had gained at University was that nurses would not have any difficulty finding employment. I have also mentioned that Dr Watson was of the opinion that there was a shortage of competent and committed nurses everywhere in the system.
The awards made by the trial Judge
Non-Pecuniary Loss
42 Section 3C(2) of the Motor Vehicle (Third Party Insurance) Act 1943 (WA) ("the Act") provides that the amount of damages to be awarded for non-pecuniary loss (defined to mean pain and suffering, loss of amenities of life, loss of enjoyment of life, curtailment of expectation of life and bodily or mental harm) is to be a proportion, determined according to the severity of the non-pecuniary loss, of the maximum amount that can be awarded. Section 3C(3) provides that the maximum amount of damages that may be awarded for non-pecuniary loss is "Amount A" (the trial Judge said that this was then $249,000) but that the maximum amount may be awarded only in a most extreme case. Section 3C(5) provides that, if the amount of non-pecuniary loss is assessed to be more than "Amount B" ($12,500) but not more than "Amount C" ($38,000), the
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- amount of damages to be awarded is the excess of the assessed amount over Amount B. The trial Judge considered that the appropriate proportion in this case was one of 12.5 per cent of a most extreme case and consequently awarded an amount of $18,625 ($31,125, being 12.5 per cent of $249,000, minus $12,500).
Past economic loss
43 The trial Judge awarded the appellant a "global amount" of $5,500, inclusive of superannuation and interest, in respect of past economic loss. She said, in that respect, that she was unable to make any precise assessment because there was a lack of precision in detailing the periods relating to this aspect of the claim and, in some respects, a complete lack of evidence. However, she accepted (at [130]) that the appellant reduced her work from full-time (five days each week) to part-time (four days each week) in October 2003 and that "moving to four days a week whilst doing general ward duties in her graduate year … [was] supported by the evidence as being appropriate and that her diminished capacity … [resulted] from the injuries she sustained in the motor accident".
Loss of future earning capacity
44 The appellant was awarded an amount of $15,000 in respect of loss of future earning capacity. The trial Judge said, in this respect, that the appellant's physical activities were not always made known to the health professionals and that this might have caused "some pessimism in the initial assessment of her condition". She said that the medical evidence demonstrated that, if the appellant did the physical rehabilitation suggested whilst modifying her lifestyle, she should be better able to physically withstand the demands of most daily work. She went on to say (at [159] – [161]):
"Her present complaints insofar as her back is concerned are likely to resolve to an extent where full-time work in the area such as the operating theatre is possible. Whilst, occasionally, there may be some difficulties overall I accept she can do this work full-time.
Taking all the medical evidence especially that of Dr Williams into account it is my view that the plaintiff should be allowed a period of 18 months from the date of trial to fully allow her spinal area which is presently giving her difficulties to resolve as much as it can and for her to complete her studies and graduate diploma.
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- The evidence is that her present loss is $200 net on a weekly basis. The 18 month multiplier on the 6 per cent tables is approximately 75 and the resultant sum is $15,000 which is the amount I intend to allow under this head."
45 She also awarded the appellant lost superannuation benefits in an amount of $1,404.
Grounds of appeal
46 Against this background, I will deal with each of the four grounds of appeal. I will deal first with ground 4, challenging the award for non-pecuniary loss, then with grounds 1 and 2, challenging the award for loss of future earning capacity and, finally, with ground 3, challenging the award in respect of loss of past earning capacity.
Ground 4 – non-pecuniary loss
47 Ground 4 was that the amount awarded in respect of non-pecuniary loss is significantly below the range of a sound discretionary judgment, given that:
"(a) the Appellant … is likely to experience some ongoing problems with chronic pain;
(b) the Appellant … has a permanent disability to her back as a result of the fracture to her thoracic spine;
(c) the pain in her back continues to affect the Appellant … to some degree in the areas of employment and leisure activities;
(d) the Appellant … may experience arthritic changes in 5 to 10 years."
48 In assessing damages under this head, the trial Judge found that she was able to obtain some guidance from what had been said in the cases of Southgate v Waterford (1990) 21 NSWLR 427 and Andjelic v Marsland (1996) 186 CLR 20. Both cases considered legislation in New South Wales which, although in different terms to s 3C of the Act, also required the Court to assess the amount of damages to be awarded for non-economic loss as a proportion, determined according to the severity of the non-economic loss, of the maximum amount which the legislation permitted to be awarded. In Southgate, at 440, Gleeson CJ, Kirby P and Meagher JA said:
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- "… it is necessary for the judge to conceive 'a most extreme case'. Only for such a case may the maximum amount provided by s 79(3) be awarded … Opinions of what constitute 'a most extreme case' would doubtless vary. But clearly quadriplegia would fall within that class. The amount to be awarded must then be apportioned … in a ratio which the judge fixes keeping in mind the fact that the cap of a statutory maximum is retained for 'a most extreme case'."
- In Andjelic, at 27, Brennan CJ, Dawson, Toohey and Gaudron JJ said:
"The limits set by s 79 … quantify the maximum and minimum that may be awarded at any given time and do so in a context where an individual's entitlement is, subject to those limits, to be assessed on the basis of the proportional severity of his or her loss to that of a most extreme case. Although there may be subjective elements involved in questions of proportional severity, s 79 is concerned to quantify compensation by reference to fixed limits, excluding awards of damages as they are ordinarily understood."
"In order to continue working full-time in her chosen profession as a nurse the plaintiff will need to modify her career path. She has taken steps in this regard.
I'm satisfied there is opportunity for the plaintiff to redirect herself to the many and varied areas of nursing which cater for those nurses not in a position to bend and lift to the extent required in acute nursing situations found on wards. These opportunities exist within a hospital setting and also within the community. However, the plaintiff has lost the opportunity to pursue any area of nursing she wishes. Some avenues are now simply not available to her."
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50 The trial Judge also mentioned the fact of the appellant's short-term adjustment disorder (finding that this had largely resolved) and the fact that, as a consequence of the accident, the appellant needed to modify her previous exercise habits, although she was still able to exercise.
51 The trial Judge found that, in summary, the appellant had suffered "a small diminution of her ability to enjoy life and to engage in activities of a work, domestic, social and sporting nature, which she previously enjoyed". She said that these problems would continue to some extent.
52 After comparing the appellant's injuries and associated symptoms with a most extreme case, taking quadriplegia as an example, the trial Judge concluded that the appellant's initial injuries and symptoms, their progression and treatment, the prognosis for their improvement and the effect that they had had on her enjoyment of life placed her case at no more than 12.5 per cent of a most extreme case.
53 As will be apparent from the grounds of appeal, the appellant does not contend that the trial Judge applied the wrong test in determining the proportion of damages to which the appellant was entitled. Indeed, it is quite plain that she correctly understood her task. An exercise of the kind undertaken by her involves a measure of discretion such that an award can only be set aside on appeal if it is "unreasonably disproportionate to the circumstances of the injury in question" (Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 at 655, per Barwick CJ), having regard for "the general standards prevailing in the community": O'Brien v Dunsdon (1965) 39 ALJR 78.
54 In my opinion, the award made by the trial Judge in this case was not disproportionate to the circumstances of the appellant's injuries. As her Honour found, the fracture of the appellant's thoracic spine (the major injury sustained by the appellant), was slight or minor and her problems with stiffness should resolve. While the appellant's sporting activities have, to some degree, been curtailed, and while she has also been obliged to modify her chosen career direction and will suffer some ongoing pain, it was, on the evidence to which I have referred, open to the trial Judge to find that the appellant had suffered only a comparatively small diminution of her ability to enjoy life and to engage in activities which she had previously enjoyed.
55 I am consequently not prepared to uphold ground 4.
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Grounds 1 and 2 – loss of future earning capacity
56 As the trial Judge correctly noted at [81], one of the main issues at the trial which impacted on the issue of loss of future earning capacity was the question whether or not the appellant would be able to continue working as a nurse on a full-time basis. She accepted that, while the heavy bending and lifting associated with general ward-type nursing duties was not an option for the appellant, on Ms Macleod's evidence (which, as I have said, was expressly accepted by her), there was an increasing availability of nursing opportunities within the community as opposed to a hospital setting. She said that, if the appellant worked full-time in an operating theatre or in any other suitable nursing area as a registered nurse, she would not suffer any loss of income. After referring to the evidence of Mr Williams (on whom she particularly relied), Dr Watson, Mr Bath and Dr Mastaglia, she said at [151] - [152]:
"The overwhelming view of the medical evidence whether called by the plaintiff or the defendant was that the plaintiff was able to work on a full-time basis if she modified her nursing activities from general ward duties to areas less likely to require lifting and bending. In March 2004 the defendant [sic] commenced working in the operating theatre as part of her graduate programme. She will complete her graduate diploma in the perioperative area at the end of 2004.
The plaintiff has maintained employment and there is no evidence she cannot continue her employment on a full-time basis as long as she modifies some of her movements. The evidence from all areas supports her being able to do that both in the short and long term - initially in theatre work and later with experience in a variety of areas."
57 Her Honour went on to say that, by the time the thoracic fracture caused the appellant potential difficulties, she would have more experience and should be able to channel her career into less physically stressful areas. She said that the appellant would, by then, have had the opportunity for further study to equip her in other areas of nursing that did not involve much heavy work, either in a hospital or in a general community setting ([153] - [154]).
58 After mentioning, at [155], that the appellant had not made "an assiduous effort in her rehabilitation in terms of physical activity" and, at [157], that her failure to make known the extent of her continued sporting involvement to the health professionals might have caused some
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- pessimism in the initial assessment of her condition, the trial Judge went on to find at [158], as I have mentioned, that the medical evidence demonstrated that, if the appellant did the physical rehabilitation suggested whilst modifying her lifestyle, she should be better able to physically withstand the demands of most daily work. She went on, at [160] - [161], to reach the conclusions which I have earlier quoted.
59 By ground 1 the appellant contends that the trial Judge's assessment of $15,000 was inordinately low given:
"(a) the finding … that the Appellant … moving to 4 days a week doing general ward duties in her graduate year was supported by the evidence as being appropriate and that her diminished capacity resulted from the injuries she sustained in the motor vehicle accident;
(b) [the fact that] the Appellant … had lost the opportunity to pursue any area of nursing she wishes and some avenues were simply not available to her;
(c) the finding … that the wedging fracture of the T12 vertebral body was potentially likely to cause the development of traumatic degenerative arthritis becoming significant over the forthcoming 5 to 10 years;
(d) [the fact that the appellant would still be restricted] notwithstanding her Honour's finding that the difficulties associated with the wedging fracture would occur at a stage in the Appellant's … nursing career when she will have more experience and this should enable her to channel her career into less physical stressful areas …;
(e) the allowance by the learned Trial Judge of future loss on the basis of 18 months loss of $200 nett per week takes no account of the lost parameter of employment which was sustained by the Appellant … and the problems that might arise as a result of the traumatic degenerative arthritis found is likely to become significant over the 5 to 10 years following the accident."
60 By ground 2 the appellant contends that the trial Judge should have assessed an additional sum, over and above the sum of $15,000, to compensate her for:
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- "(a) the restriction in the parameters of employment;
(b) the likelihood of periods of unemployment;
(c) the difficulties in obtaining employment resulting from the injuries; and
(d) the fact the Appellant … would be a less attractive candidate for employment in the open labour market given that the existence of such injuries could prejudice the Appellant's … attempts to obtain employment in the future."
61 It is important to bear in mind, when considering claims of this nature, that, while the correct question is whether, as a result of the accident, the appellant has been rendered less capable of earning income (Medlin v The State Government Insurance Commission (1995) 182 CLR 1 at 3 - 4, per Deane, Dawson, Toohey and Gaudron JJ; and at 16 - 17 per McHugh J; and Husher v Husher (1999) 197 CLR 138 at 143, per Gleeson CJ, Gummow, Kirby and Hayne JJ), no damages will be recovered for loss of earning capacity unless the loss is or may be productive of financial loss: Graham v Baker (1961) 106 CLR 340 at 347. Thus, in Medlin above, McHugh J said, at [16]:
"In practice, there is usually little difference in result irrespective of whether the damages are assessed by reference to loss of earning capacity or by reference to loss of earnings. That is because 'an injured plaintiff recovers not merely because his earning capacity has been diminished but because the diminution of his earning capacity is or may be productive of financial loss' (Graham v Baker (1961) 106 CLR at 347)."
- His Honour went on to say (ibid):
"Nevertheless, there is a difference between the two approaches, and the loss of earning capacity principle more accurately compensates a plaintiff for the effect of an accident on the plaintiff's ability to earn income. Earning capacity is an intangible asset. Its value depends on what it is capable of producing. Earnings are evidence of the value of earning capacity but they are not synonymous with its value. When loss of earnings rather than loss of capacity to earn is the criterion, the natural tendency is to compare the plaintiff's pre-accident and post-accident earnings. This sometimes means that no
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- attention is paid to that part of the plaintiff's capacity to earn that was not exploited before the accident. Further, there is a tendency to assume that if pre-accident and post-accident incomes are comparable, no loss has occurred."
- (See also, at 4, per Deane, Dawson, Toohey and Gaudron JJ).
62 In Husher, at 143, Gleeson CJ, Gummow, Kirby and Hayne JJ said:
"If the victim's pursuit of gainful employment is interrupted or affected because of the negligent infliction of physical injury, the victim is to be compensated by an amount that reflects the financial consequences that follow from the impairment.
Since at least Graham v Baker (1961) 106 CLR 340 it has been recognised that it is convenient to assess an injured plaintiff's economic loss 'by reference to the actual loss of wages which occurs up to the time of trial and which can be more or less precisely ascertained and then, having regard to the plaintiff's proved condition at the time of trial, to attempt some assessment of his future loss' (Graham v Baker … at 346-347, per Dixon CJ, Kitto and Taylor JJ). But damages for both past loss and future loss are allowed to an injured plaintiff 'because the diminution of his earning capacity is or may be productive of financial loss' (Graham v Baker … at 347 …). Both elements are important. It is necessary to identify both what capacity has been lost and what economic consequences will probably flow from that loss. Only then will it be possible to assess what sum will put the plaintiff in the same position as he or she would have been in if injury had not been sustained."
63 Most recently, Gleeson CJ, Gummow and Haydon JJ have said, in CSR Ltd v Eddy (2005) 80 ALJR 59; [2005] HCA 64 at [30]:
"Although the damages recoverable in relation to reduced future income are damages for loss of earning capacity, not damages for loss of earnings simpliciter, those damages are awardable only to the extent that the loss has been or may be productive of financial loss (Graham v Baker … at 347 per Dixon CJ, Kitto and Taylor JJ; Medlin … at 5 and 18 per Deane, Dawson, Toohey and Gaudron JJ and McHugh J respectively)."
64 In this case, while the evidence established that the appellant would be unable to work in a medical or surgical ward in a hospital, it also
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- established, as the trial Judge found, that the appellant was able to work full-time in other positions which did not involve heavy lifting and bending and, on the evidence of Ms Macleod in particular, that work of that kind would be available to the appellant, even with her present level of experience. Moreover, it seems, from the evidence of each of Ms Griffiths, Ms Peters and Ms Hudson, that work of that kind will be open to the appellant once she has gained more experience. In those circumstances, it seems to me, it was open to the trial Judge to find, as she did, that such diminution as there was in the appellant's capacity would not be productive of financial loss other than in the short term.
65 As to the prospect that the appellant will develop degenerative arthritis, I have mentioned that the trial Judge accepted that she might experience arthritic changes in five to ten years' time. However, it is plain from her judgment that she considered that, by then, the appellant will have been able to redirect herself to one or other of "the many and varied areas of nursing which cater for those nurses not in a position to bend and lift to the extent required in acute nursing situations found on wards" ([115], [153] and [154]) and that she will be able to maintain full-time work in one or other of those areas ([152]). In my opinion, those finding were open to her on the evidence upon which she relied.
66 It follows that these grounds have not been made out.
Ground 3 – loss of past earning capacity
67 By ground 3, the appellant contends that the award of $5,500 in respect of past economic loss was too low, given that the trial Judge found in effect that, from October 2003, the appellant had a diminished earning capacity as a result of her injuries, giving rise to a financial loss of $200 net per week. The appellant's counsel contends that the appellant should have been awarded $200 per week for a period of 41 weeks from 13 October 2003 (when she moved to a four-day working week) until 23 July 2004 (the date of judgment) in addition to an amount of $960 in respect of the two-week period following the accident in which she was unable to work at the rate of $480 per week which she was then able to command. The contention is then made that lost superannuation entitlements (amounting to $560) and interest (at three per cent) bring the amount which should have been awarded up to $11,178.
68 In my respectful opinion, there is substance to this ground. I can see no reason why the trial Judge, having been prepared, when dealing with future economic loss, to allow the appellant a period of 18 months from the date of trial to fully allow her spinal area difficulties to resolve as
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- much as they could, and for her to complete her studies and graduate diploma, should not have been prepared to make a similar allowance between 13 October 2003 and the date of trial.
69 The appellant had seemingly particularised her claim for past economic loss by alleging that she had been unable to work from 23 October 2000 to 7 November 2000, for about one week in May 2002 and at various times between the accident and the date of the trial for a further total of 35 days, in addition to claiming economic loss arising out of her need to reduce working hours each week from 13 October 2003 onwards (although this last claim is not reflected in the particulars forming part of the appeal books). It is presumably only to the second and third heads of claim that her Honour's comment concerning the lack of precision, and in some respects, a complete lack of evidence, were directed, there having been clear evidence of an inability to work between 23 October and 7 November 2000 and the trial Judge having accepted (at [130]) that "moving to four days a week whilst doing general ward duties in her graduate year … [was] supported by the evidence as being appropriate" and that "her diminished capacity … [resulted] from the injuries she sustained in the motor accident". Given those findings, and the allowance which the trial Judge was prepared to make in respect of the period of 18 months from the date of trial, it seems to me that her Honour erred in the calculation of a global sum of $5,500 and that the appellant should have been awarded the sum of $11,178 (inclusive of superannuation entitlements and interest) calculated by counsel for the appellant. No issue was taken by the respondent with the mathematics involved in that calculation.
Conclusion
70 It follows that I would uphold only ground 3 of the grounds of appeal. The effect of that is that the amount of $44,129 awarded by the trial Judge should be increased by an amount of $5,678 ($11,178 less $5,500). I would consequently set aside the award made by the trial Judge and substitute, in lieu, an award of $49,807. I would hear further from the parties as regards the costs of the appeal.
71 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Steytler P. I agree with those reasons and have nothing to add.
72 PULLIN JA: I have read the draft reasons prepared by Steytler P. I agree with those reasons and have nothing to add.
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