Goodson v Suncorp Insurance and Finance

[1992] QCA 150

IN THE COURT OF APPEAL	[1992] QCA 150
SUPREME COURT OF QUEENSLAND	No. 100 of 1991
BETWEEN:

JODIE MAREE GOODSON

(Plaintiff) Respondent

AND:

SUNCORP INSURANCE & FINANCE

(First Defendant)

AND:

GLENN DOUGLAS RAE

(Second Defendant)

AND:

FAI GENERAL INSURANCE COMPANY LIMITED

(Defendant by Election) Appellant

JOINT REASONS FOR JUDGMENT OF DAVIES J.A. AND DERRINGTON J.

Delivered the 17th day of June 1992

This is an appeal from an assessment of damages for personal injury in an action for negligence. The appellant is the defendant by election, FAI General Insurance Company Limited.

The plaintiff respondent was injured in a motor vehicle accident on 4 December 1985. She was a pillion passenger on a motor cycle from which she was thrown causing her severe injuries. She was then aged 18, having been born on 7 May 1967. The trial took place nearly six years later by which time she was 24. Her injuries were:

1.   a disruption of the left hemi-pelvis with a fracture dislocation of the left sacro-iliac joint, a diastasis of the symphysis pubis and public rami fractures superiorly and inferiorly on the left side.

2.   a closed left sided Colles fracture of the distal radius.

3.    a laceration of the posterolateral aspect of the distal third of the right leg.

4.    a laceration to the left heel.

5.    a chip injury to one of the central lower teeth.

She was admitted to the Redcliffe Hospital where she was subjected to an exploratory laparotomy. An external fixatur was also applied to the pelvis to stabilise the left sided hemi-pelvic disruption. A manipulation under anaesthesia of the Colles fracture was also performed and the forearm was encased in a Plaster of Paris cast. Also a number of lacerations were repaired.

When seen first by Dr Morgan, an orthopaedic surgeon, in
April 1989 her complaints were as follows:

1.    Intermittent pain in the region of the left sacro-iliac joint. This pain was present with prolonged sitting, standing and activities such a bed making and vacuuming in the home. She experienced the discomfort daily, and it gave rise to a considerable disturbance in her daily work pattern. She also experienced some considerable lower lumbar pain during the course of a recent pregnancy. The doctor noted that she underwent a lower section caesarean section at 40 weeks gestation as a result of the pelvic disproportion following the pelvic fracture.

2.   She complained of a constant numbness in the lateral aspect of the proximal third of the left thigh.

3.    She complained of occasional aches in the region of the left wrist joint. This aching pain localised to the dorso-radial aspect of the joint, and was related to changes in the weather.

4. Even since the pelvic disruption, she had been plagued
by poor bladder control. She suffered from an
embarrassing state of urinary incontinence and wet her
pants with urine approximately three times per week.
She had to carefully time any excursions from her home
and experienced considerable urgency in her needs to
micturate when the sensation presented.

Dr Morgan saw her again shortly prior to trial. At that time she continued to complain of pain in the region of the left sacro-iliac joint. This pain was of a constant nature, typically made worse by standing, walking and performing normal household duties. In addition, she complained of an associated pain which radiated on an intermittent basis to the lateral aspect of the left greater trochanter and occasionally to the left groin. She complained of pain in the form of an ache in the region of the symphysis pubis.

She noted this specifically during sexual intercourse and with her menstrual cycle. She also complained of a sensation of weakness in the region of the left wrist joint with an associated reduction in grip strength. She stated that she did not experience pain or swelling in the region of the left wrist.

The doctor's clinical examination on this occasion showed that the plaintiff's stance was characterised by elevation of the left hemi-pelvis with an apparent leg length discrepancy. Her gait was essentially normal.

Dr Morgan thought that she may require formal fusion of the left sacro-iliac joint in the future. She is left with significant deformity and disability in the region of the left hemi-pelvis which the doctor thought, and the appellant accepted on appeal, made it unlikely that the plaintiff would ever be capable of fulfilling laborious manual tasks in any form of employment in the future; she would be suited only to sedentary or semi-sedentary tasks. The disability resulting from the injury to the plaintiff's left hemi- pelvis the doctor estimated as amounting to a loss of use of 40% of the leg which in turn represented a loss of 25% of the whole person.

The plaintiff's incontinence of urine problem was the subject of evidence by Dr Heathcote, a urologist. He describes the forces involved in her injury as massive. He first saw her in August 1989. She then suffered both urgency incontinence and stress incontinence of urine. She was already taking a drug called Pro-Banthine which, though it controlled symptoms, was not a cure. Dr Heathcote was of opinion that she would have to take this medication for the rest of her life to control her symptoms. There was also a considerable chance, in his view, that the symptoms would worsen with time and that she might either require higher doses of medication or that the medication would fail to control her symptoms resulting in permanent incontinence requiring either urethral reconstruction or major bladder surgery. He thought it impossible to predict the progress of her bladder and urethral behaviour over a period of time.

Dr Heathcote saw the plaintiff again in October 1991. She had been stable since the last report and an ultrasound during a pregnancy had shown no urinary tract abnormalities.

He said, however, that his previous opinion still stood.

Since her accident the plaintiff has had two children and the medical evidence was that she would be limited to three because of the necessity to deliver them by caesarean section. However, subject to that and to the increased pain because of her pelvic disability, her pregnancies had been relatively normal.

The plaintiff's other residual problem was scarring. Dr Robinson, a plastic surgeon, described those in his report and there are photographs contained in the appeal book. The main scarring appears to be on the hip bone and the abdomen, though there are also some on her feet. Her main concern was those on her abdomen which, for a time, prevented her from wearing a bikini, but as they have faded and she has become less sensitive to them she has taken to wearing a bikini again.

The plaintiff spent six and a half weeks in hospital, some of that time in traction and, as we have already mentioned, she underwent operative treatment during that time. She spent some time in a wheelchair and attempted to return to work in April 1986.

In late 1986 she formed a relationship with a person to whom she has had two children and they plan to marry. At the time of trial they were living together with their children as a married couple.

The plaintiff left school at 15 years of age at the end of 1982 and commenced work at the Scarborough Cake Shop. From then until the time of the accident she had worked constantly except for a period of unemployment between the end of May and the early part of August 1985. Most of her employment had been in cake or bakery shops, her only other employment being for a period of about three months with a company called Precision Dyes in which she was engaged in stapling boxes with a machine. At the time of her accident she was employed at the Scarborough Cake Shop where she had first obtained employment upon leaving school. She was working only three days a week because that was the total amount of work that was offered.

All of the work in which she had been engaged prior to her accident involved standing almost full time. None of it could be described as sedentary or semi-sedentary work. She had had no clerical training or experience which would equip her for any work of that kind.

When she returned to work at the Scarborough Cake Shop in April 1986 she lasted for only two or three months and was unable to continue. She then attempted work at Precision Dyes but could not hold that position either because of standing and bending on cement floors. She took painkillers for her back pain but she was nevertheless unable to continue.

We should say that the appellant does not dispute any of this. Indeed, the appellant's counsel described the respondent as stoic.

There was some evidence from the respondent that she was interested in obtaining an apprenticeship, apparently as a pastry cook. There is no evidence of her prospects of obtaining this and his Honour apparently disregarded it (because he did not mention it) as a factor which would or might, but for her injuries, have increased her earning capacity.

The only slight criticism which the appellant levied at the respondent was that, having been directed to the Belmont Rehabilitation Centre by the Workers Compensation Board, she checked herself out of there. However, her reason was her inability to cope with having to live-in with psychiatric patients in a psychiatric ward. She had indicated she was prepared to return on a daily basis but did not do so because of the failure of the Workers Compensation Board to meet her travelling expenses. It is difficult to see how her conduct was unreasonable in any aspect of this.

The major components of the award of damages of $146,346.65 were $50,000 for past economic loss, $35,000 for future economic loss and $50,000 for pain suffering and loss of amenity. Each of these major components was attacked by the appellant.

The sum of $50,000 for past economic loss was the result of a discounting by his Honour from the sum of $60,000, the total of past economic loss calculated in accordance with a schedule which was exhibit 16. This calculated the respondent's economic loss to the date of trial on the assumption that she continued to work for the Scarborough Cake Shop for three days a week at the award rate except for a period of eight weeks allowed for the birth of each of her children. In fact in this allowance there was an omission in one case of an allowance of two weeks but it was conceded that this made very little difference to the result. The real question was whether to discount this sum by only $10,000 was sufficient having regard to the commitment which the respondent might have had to those children; to the possibility that, for other reasons during this period, she might have been unemployed for some time; and to whether she should have obtained some employment during the years 1987 to 1991.

As to the first of these, whilst it could not be doubted that full time employment might have become increasingly difficult for the respondent after the birth of her two children, assuming as we do that her partner was in full time employment, the same is not necessarily true of employment for only three days a week. Furthermore, she had adequate babysitting assistance from her mother and from other members of her family and friends.

As to the second, her counsel pointed to her work history before the accident and to her need to work as enhancing the probability that she would have continued to work at least at the same rate. To that should be added her good work history and the possibility, however remote, that she would have attained her ambition of qualifying as a chef.

Further, there is the favourable contingency that had she not been injured she may, before her first child, have found full-time work with substantially greater earnings and the remoter possibility that she might have found full-time work after the births of her respective children.

As to the third, though there was little evidence of efforts to obtain work during these years, her capacity to work was severely limited by her disability and her lack of education and training. Furthermore, his Honour was entitled to accept her evidence of her need to work as demonstrating her keenness to work if she could have found suitable employment.

We do not think therefore that the discount which his Honour took of $10,000 from the calculation in exhibit 16 was inadequate.

The amount of $35,000 for future loss of earning capacity represented an amount of $52.50 a week over a period of 20 years. That sum was between one fifth and one quarter of the amount which the respondent was earning at the date of her accident. She had sworn to her intention to continue working indefinitely and though for various reasons there might be interruptions in that from time to time, there was no reason for his Honour not to have accepted the likelihood of this, having regard as well to all of the factors referred to above. No doubt his Honour was required to make some allowance for the possibility that, during that period, the respondent will obtain some work but given her educational as well as her physical histories we do not think that any substantial discount should be made for that.

Consequently, we think that his Honour's assessment for

loss of future earning capacity was reasonable.
We turn now to his Honour's assessment of damages for pain,
suffering and loss of amenity for which his Honour awarded
$50,000. At first glance this seems a high amount.
However, the respondent has endured a great deal of pain and
discomfort already in consequence of the massive blow to her
sacro-iliac region. This will continue, though in an abated
form, and she faces the possibility of a further operation.

Furthermore, the possibility, in a woman as young as this, of increased urinary problems in the future is a daunting one.

We were referred to one case only on this aspect of the award, Lewin v. Finn, a decision of Mr Justice Kneipp in August 1988 in which $40,000 was awarded for pain, suffering and loss of amenities to a woman about the same age as the respondent who had sustained fractures of the left inferior and superior pubic rami and fractures of the right ilium and the right sacrum, as well as dislocation of the right hip and disruption of the right sacro-iliac joint. Her disability had been assessed by an orthopaedic surgeon as 65% loss of function of her right leg with a permanent disability in that leg of 40% after a hip joint replacement which should be successful. This compares roughly with 40% disability of the leg, translating into 25% disability of the whole person, assessed in this case by Dr Morgan. The consequent permanent disabilities in the two women seem quite similar.

In the present case his Honour appears to have awarded slightly higher for pain, suffering and loss of amenities and slightly lower for future loss of earning capacity than he might otherwise have done because he thought that she would perform some work in the future at the expense of pain and suffering.

Although we think that his Honour's assessment for pain, suffering and loss of amenities in this case was at the high end of the permissible range, we do not think it was beyond the permissible range in this case.

Accordingly the appeal should be dismissed.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	No. 100 of 1991
Before the Court of Appeal
Mr Justice Pincus Mr Justice Davies Mr Justice Derrington
BETWEEN:

JODIE MAREE GOODSON

(Plaintiff) Respondent

AND:

SUNCORP INSURANCE & FINANCE

(First Defendant)

AND:

GLENN DOUGLAS RAE

(Second Defendant)

AND:

FAI GENERAL INSURANCE COMPANY LIMITED

(Defendant by Election) Appellant

JOINT REASONS FOR JUDGMENT OF DAVIES J.A. AND DERRINGTON J.

Delivered the 17th day of June 1992

MINUTE OF ORDER:	Appeal dismissed
CATCHWORDS:
Counsel:	R. Hanson Q.C. for the Appellant S.C. Williams Q.C. with him A.J. Williams for the Respondent
Solicitors:	Bradley & Co. for the Appellant K. McSweeney & Co. for the Respondent
Hearing Date(s):	22 May 1992

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	No. 100 of 1991
BETWEEN:

JODIE MAREE GOODSON

(Plaintiff) Respondent

AND:

SUNCORP INSURANCE & FINANCE

(First Defendant)

AND:

GLENN DOUGLAS RAE

(Second Defendant)

AND:

FAI GENERAL INSURANCE COMPANY LIMITED

(Defendant by Election) Appellant

__________________________________________________
__

MR JUSTICE PINCUS MR JUSTICE DAVIES MR JUSTICE DERRINGTON

__________________________________________________
__

Reasons for judgment of Pincus J.A., dissenting, and joint reasons for judgment of Davies J.A. and Derrington J., delivered the 17th day of June 1992 __________________________________________________ __

"APPEAL DISMISSED"

THE COURT OF APPEAL

[1992] QCA 150

SUPREME COURT OF QUEENSLAND

Appeal No. 100 of

1991

BETWEEN:

JODIE MAREE GOODSON

(Plaintiff) Respondent

AND:

SUNCORP INSURANCE AND FINANCE

(First Defendant)

AND:

GLENN DOUGLAS RAE

(Second Defendant)

AND:

FAI GENERAL INSURANCE COMPANY LIMITED

(Defendant by	Appellant
Election)

JUDGMENT - PINCUS J.A.

Delivered the Seventeenth day of June 1992

This is an appeal from the District Court in a personal injuries case. Liability was admitted and the question for the judge was quantum. Damages were assessed in a total sum of $146,346.65 together with interest.

The respondent was injured in a road accident on 4 December 1985 when she was 18 years of age. I have read the reasons of Davies J.A. His Honour's account of the facts of the case makes it unnecessary to set out the medical opinions and the history of the matter in full detail.

The principal components of the award of damages were $50,000 for pain, suffering and loss of amenity, $50,000 for past economic loss and $35,000 for future economic loss. The first component is a generous sum, but I respectfully agree that the first and third components cannot be disturbed.

I have had more difficulty with the appellant's attack on the award of $50,000 for past economic loss and have come in the end to the conclusion that it should not stand.

Dr. Morgan, whom the trial judge accepted, reported in 1989 that the respondent complained of intermittent pain in the region of the left sacroiliac joint present with prolonged sitting, standing and activities such as bed- making and vacuuming; numbness in the left thigh;

occasional aching in the left wrist and a degree of urinary incontinence. Examination revealed her to have a normal stance and gait and to exhibit some tenderness on palpation in relevant areas. The doctor commented that stressing the left hemipelvis gave rise to sacroiliac joint discomfort.

He assessed the disability as being equal to 15 to 20 per

cent of the normal functional capacity of the left leg.

On a further examination shortly before the trial, the findings were of a rather similar character, but having regard to a certain document published by the American Medical Association, Dr. Morgan expressed the view that his original

percentage assessment was wrong and that there was a "total loss of 25% of the whole person".

It should be added that it appears from a report by a gynaecologist that last year the respondent's bladder function seemed to be "a lot better". The other medical evidence, on which the trial judge

made no comment, was broadly consistent with Dr. Morgan's, except as to his second quantitative assessment of degree of disability. Dr. Morgan thought the respondent would be unlikely ever to be "capable of fulfilling laborious manual tasks in any form of employment in the future" and that she "would, however, be suited to sedentary and semi-sedentary tasks in the future". Both an occupational therapist (who saw the respondent at the request of her solicitors) and a neurosurgeon, Dr. Atkinson, expressed a view to the effect that the respondent should be able to return to her pre-accident employment - a cake shop assistant.

Undoubtedly the injury was a serious one, but it is

possible to exaggerate the gravity of its consequences.
Some points made by Dr. Morgan should be noted. Movement of
the left hip joint was normal, with no apparent discomfort.

There was a complaint of weakness in the left wrist, which was not supported by testing. The only complaint of pain during the 1991 examination was what the doctor described as "moderate tenderness" which could be elicited with palpation in the region of the left sacroiliac joint. Somewhat oddly, to my mind, the pain in the region of that joint was described to Dr. Morgan in 1989 as being intermittent and present with various activities, but was described in 1991, shortly before trial, as constant and "typically made worse" by those activities; the respondent did not suggest in her evidence that her disability had worsened during that period. But the point which appears to me to merit emphasis is that, apart from the bone deformity consequent upon the fracture, little sign of disability could be elicited on orthopaedic examination. Another doctor gave evidence of a one centimetre discrepancy in leg lengths, due to the pelvic injury.

Prior to her accident, the respondent, according to rather sketchy evidence of her work history, was working three days a week in a cake shop. After she recovered from her injury, she tried working again early in 1986, but gave that up; she said she found the work: "Difficult, I suppose ...". She then got another job, as a carton stitcher, in May and June 1986, but said she was unable to handle that work. It is curious that in describing her problems with that job (her last), the respondent said:

"... Yes, I sort of was having pain in the ankles, swelling of the ankles and pain in the lower back that was sort of lasting until I sort of went to bed to sleep".

There was no medical evidence of trouble with the respondent's ankles, nor complaint to doctors on that score.

Past economic loss has been assessed by taking the amount the applicant would have earned had she stayed at the job she had when the accident occurred (about $60,000) and discounting that sum by $10,000 "because of possible complications with pregnancy and the workforce".

There was very little evidence of any attempt to earn an income in the years 1987, 1988, 1989, 1990 and 1991, during which the respondent has been treated as having lost earnings at almost her pre-accident rate, augmented in accordance with her increasing age. The respondent gave evidence that she had done part-time work as a teacher's aide in 1986 and that at the date of trial (November 1991) she was selling lingerie part-time, but at no profit.

It is a reasonable inference that the respondent's disability would have made it more difficult for her to obtain work, had she attempted to do so after her initial endeavours to return to work, in 1986, were unsuccessful. There was evidence from the occupational therapist that the respondent's "handling capacity would be sufficient for the occasional handling of medium loads", which implied that she could not constantly handle such loads. But in the absence of evidence of attempts to get employment, it appears to me to have been overly generous to treat the respondent as totally unable to earn income for about five years, as the judge has done. This is particularly so when one keeps in mind that the award for past economic loss was substantially greater than that for future economic loss; it is hard, to my mind, to reconcile the two components.

It is my respectful opinion that the learned judge should have inferred from the circumstances that there were matters other than her moderate disability which contributed to the respondent's having earned, on the evidence, absolutely nothing for about five years prior to the trial.

The evidence shows that until early April 1988 - shortly after she had her first child - the respondent was receiving worker's compensation and from that time on her responsibilities as a mother must surely have been a discouragement to seeking work. In cross-examination there is to be found this passage:

"It was your choice, I am suggesting to you, that rather than go back to work you wanted to, as it were, cement this relationship and to have children; is that right? That was your conscience (sic) choice?--Well, yes, if you word it that way, yes.

It is the truth, isn't it?--Well, I did decide to have children and, I suppose, yeah".

Had the evidence included accounts of persistent but unsuccessful attempts to obtain work, a different view might have been open; there was no such evidence. It is my opinion that the judge should have held that at least a substantial cause of the respondent's not having earned any money for such a long time was that suggested by the answers just quoted.

I would allow the appeal and reduce the amount allowed for past economic loss from $50,000 fixed by the judge to $30,000, with a consequential reduction in the amount of interest awarded.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 100 of

1991

Before the Court of Appeal
Mr. Justice Davies
Mr. Justice Pincus

Mr. Justice Derrington

BETWEEN:

JODIE MAREE GOODSON

(Plaintiff) Respondent

AND:

SUNCORP INSURANCE AND FINANCE

(First Defendant)

AND:

GLENN DOUGLAS RAE

(Second Defendant)

AND:

FAI GENERAL INSURANCE COMPANY LIMITED

(Defendant by	Appellant
Election)

JUDGMENT - PINCUS J.A.

Delivered the Seventeenth day of June 1992

Counsel:	R. Hanson Q.C., for the Appellant S.C. Williams Q.C., with him A.J.
Williams
for the Respondent
Solicitors:	Bradley & Co. for the Appellant K. McSweeney & Co. for the Respondent
Hearing Date(s):	22 May 1992