Gumbert v Gumbert

[2000] NSWCA 17

NEW SOUTH WALES COURT OF APPEAL

CITATION:     Gumbert v Gumbert [2000]  NSWCA 17

FILE NUMBER(S):
40262/99

HEARING DATE(S):           18 February 2000

JUDGMENT DATE:            25/02/2000

PARTIES:
Roland Gumbert (Appellant)
Linda Gumbert (Respondent)

JUDGMENT OF:      Beazley JA Heydon JA    

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):        726/97

LOWER COURT JUDICIAL OFFICER:     Goldring DCJ

COUNSEL:
M.J. Neil QC/G.J. Bellew (Appellant)
R. Leatherbarrow SC/S. Campbell (Respondent)

SOLICITORS:
Bruce & Stewart (Appellant)
Symons & Company (Respondent)

CATCHWORDS:
APPEAL - personal injury - motor vehicle accident - whether respondent failed to mitigate loss - whether causal link between pain and injury - quantum of damages as proportion of most extreme case - need for ongoing domestic assistance
CROSS-APPEAL - no evidence of past economic loss - quantum of future economic loss  ND

LEGISLATION CITED:
Motor Accidents Act 1998

DECISION:
Appeal allowed in part
Cross appeal dismissed

JUDGMENT:

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40262/99
  DC 726/97

BEAZLEY JA
  HEYDON JA

Friday, 25 February 2000

Roland GUMBERT  v Linda GUMBERT

JUDGMENT

1. BEAZLEY JA:    I agree with Heydon JA.

2. HEYDON JA:    This is an appeal and cross-appeal from a judgment in favour of the respondent, Mrs Gumbert (the plaintiff below) for $313,797.96. 

3. Mr Gumbert was driving a car which was involved in an accident on 9 January 1995.  Mrs Gumbert, a passenger, was injured.  Mr Gumbert admitted liability. 

   Appeal

   Mitigation of Loss

4. The first ground of appeal was that the trial judge had erred in finding that Mrs Gumbert had mitigated her loss within the meaning of s 39 of the Motor Accidents Act 1998.  The question is whether Mrs Gumbert took reasonable steps to mitigate her damages.  The onus of establishing that lay on her:  s 39(2). 

5. At the trial, in the trial judge’s understanding, the failure to mitigate argument centred on failure to seek specialist treatment of physiotherapy for back pain.  That was certainly the main focus of the cross-examination on mitigation.  The trial judge accepted Mrs Gumbert’s evidence that she had had two courses of physiotherapy for a previous episode of back pain which she found unhelpful, and for that reason did not act on the suggestion that she have physiotherapy.  He also accepted her evidence that she did not act on the suggestion of back surgery because she perceived this to have potential risks. 

6. Mr Gumbert’s argument on appeal centred on three matters.  The first was that Mrs Gumbert was advised to have an X-ray of her sternum on 27 March 1995 by her treating doctor, Dr Goodall, but did not.  Secondly, on the same day she was referred to physiotherapy for her shoulder injury by Dr Goodall, but did not seek physiotherapy either for her shoulder injury or her back pain.  Thirdly, Mrs Gumbert failed to seek a referral to an orthopaedic surgeon for any of her injuries.

7. Whether these refusals or failures were reasonable depends on the medical advice given to Mrs Gumbert and all the circumstances known to her and affecting her. 

8. On the question as to an X-ray of the sternum, the trial judge said nothing.  However, immediately after the accident her sternum had been X-rayed.  The X-ray revealed a depressed fracture of the mid-sternum.  This healed with some difficulty and was pain free by November 1995.  Mr Gumbert did not demonstrate what utility the diagnostic procedure of a further X-ray would have had, and how it would have reduced Mrs Gumbert’s damages.  Indeed, it was part of Mr Gumbert’s argument for another purpose that by 27 March 1995 Mrs Gumbert had no ongoing problem with her sternum. 

9. As to the failure to have physiotherapy, Dr Goodall’s suggestion related to her shoulder injury.  There is no ground for interfering with the trial judge’s acceptance of Mrs Gumbert’s evidence that she had had two previous courses of physiotherapy for her earlier back trouble which she found unsuccessful, and accordingly that she was sceptical about its utility.  If she was sceptical about its utility in relation to her back, it was not unreasonable for her to be sceptical about its utility in relation to her shoulder.  While some of the doctors did suggest that physiotherapy might be beneficial (e.g. Dr Glen and Dr Buckley), as did an occupational therapist, Ms Allan, the fact that the non-adoption of physiotherapy was not unreasonable is supported by the fact that her previous back pain had been resolved by bed rest and lifestyle changes.  She adopted the same methods for her back pain after the car accident, and kept the pain under some control by that means.  That type of treatment was regarded by Dr Berry as desirable.  He did not recommend physiotherapy and neither did Dr Potter or Dr Price.   

10. This part of the argument was put by Mr Gumbert on the basis that there was a “referral” for physiotherapy.  There is no evidence to indicate that Dr Goodall’s advice rose above a suggestion that she have physiotherapy.  That was the way in which the matter was put, fairly, in cross-examination.  There is no reason to interfere with the trial judge’s view that this fell below the level of specific advice to have physiotherapy.

11. In all the circumstances there is no ground for interfering with the trial judge’s conclusion that there was nothing unreasonable in her failure to have physiotherapy

12. On the question of orthopaedic surgery, there is no ground for disturbing the trial judge’s finding that she had a very strong resistance to back surgery because of its potential risks.  She was not advised to have it.  Dr Carr opined in 1997 that she did not require surgical intervention.  The trial judge’s conclusion that she did not fail to mitigate her loss in this respect has not been shown to be wrong. 

    Did the Accident Cause Mrs Gumbert’s Back Pain?

13. It is convenient to take this before the ground of appeal relating to general damages, since, if the issue were resolved favourably to Mr Gumbert, it would support his argument on the excessiveness of general damages. 

14. The trial judge found that while there is no note by Dr Goodall of any complaint about back pain, Mrs Gumbert had “complained constantly” of back pain according to the reports of all the doctors who had examined her for the purposes of the case.  He found that some of them had identified significant impairments to her back. He said that this was hardly surprising given the pre-existing condition which she had.  He found it significant that for eight years prior to the accident Mrs Gumbert had not suffered any symptoms in her back.  He inferred from the fact that after the accident she did suffer those symptoms that the severe impact of the accident exacerbated the condition from which she previously suffered.  He found that more probably than not there was a causal connection between the impact of the accident and the recurrence of the symptoms in her back.

15. Mr Gumbert complained of the finding that Mrs Gumbert had “complained constantly” of back pain.  She certainly did complain to the examining doctors.  Whether a significant inference can be drawn from an absence of a recording of any complaint in the records of Dr Goodall depends on the satisfactoriness and completeness of those records.  The trial judge did not find them to be complete records by comparative standards.  Mrs Gumbert’s evidence was that she began to feel back pain about two months after the accident.  She called Mr Gumbert, who corroborated that evidence:  Mr Gumbert was not cross-examined on that point.  She often stated in the histories she gave to examining doctors that she first noticed back pain after two months.  The first complaint of that kind was as early as November 1995, to Dr Glen.  In the circumstances it is not possible to interfere with the findings of the trial judge that for eight years before 1995 she had no back pain and that she began to feel it about two months after the accident. 

16. Counsel for Mrs Gumbert pointed out that while only one of the doctors who examined Mrs Gumbert on behalf of Mr Gumbert had grasped her history correctly, as found at the trial by the trial judge, the examining doctors who examined her on her own behalf had the correct history and had no difficulty in concluding that there was a causal link between the accident and the post-accident back pain.  Thus, Dr Berry propounded the opinion that as a result of the accident she had suffered “a ligamentous injury to the lumbar spine aggravating a pre-existing degenerate L4-5 disc”.  He said he attributed “her low back problems to her motor vehicle accident”.  Dr Glen said “There has been considerable aggravation of her lumbar spinal condition”.  Dr Carr who treated her both before and after the accident concluded that “indirectly” the accident “rendered her degenerate lumbar disc symptomatic once more”.  His explanation for the absence of pain for the first two months was put as follows: 

    “Her abdominal muscles have all become very weak with lying around for two months, and then when she has finally got up and started to sit for periods she has developed symptomatic degenerative lumbar disc disease once more.  This would not have happened had she not had the injury and had this period of recumbency."

    The fact that there was medical evidence to the contrary of these opinions does not entitle this Court to interfere in the finding of the trial judge.  Not only was this finding supported by evidence, but it was evidence of some power. 

    General Damages:  25% of the Most Extreme Case

17. It was the argument of Mr Gumbert that the objective evidence of Dr Goodall’s medical records suggested that Mrs Gumbert’s injuries had largely resolved within a matter of months of the accident.  He submitted that the verdict was manifestly excessive.  It was not submitted that the trial judge had made any identifiable error of principle, nor that he had made any erroneous finding of fact, apart from findings in relation to the back injury discussed above.  Since it is not possible to interfere with the findings as to the back injury, it does not seem possible to conclude that the selection of the figure of 25% is wholly erroneous.  Mrs Gumbert may live another 35 or 40 years and is likely to suffer back symptoms from time to time during that period:  see in particular the opinions of Dr Buckley (“The prognosis for the low back osteoarthritic changes is of slow progressive deterioration”), Dr Glen (“the symptoms arising from her back are likely to give rise to recurrent symptoms”) and Dr Berry (“She has a degenerative disc in the lumbar spine that has been aggravated, I would expect that it is more likely that she will be subject to intermittent pain in the back for a prolonged period of time”).  While her other injuries are of less significance, there was evidence before the trial judge sufficient to justify the 25% figure.

    Need for Ongoing Domestic Assistance:  Award of $144,474

18. The position of Mr Gumbert was that it was wrong to allow for any assistance on the basis of a back disability:  that submission must be rejected on grounds set out above.

19. Mr Gumbert submitted that it would be appropriate for Mrs Gumbert to have domestic assistance for about four hours per fortnight.  On one argument, that allowance should be made for three years;  on another, for thirty-three years.

20. Mrs Gumbert pointed to the evidence of Dr Berry that she was unfit for activities requiring heavy lifting, repetitive bending and prolonged crouching and stooping.  He also said that she should avoid “aggravating activities”.  While the figure which results from the evidence of Dr Berry and Ms Allan, which the trial judge appears to have accepted, is (subject to a concession by Mrs Gumbert to be discussed below) a high one, it appears to be soundly based on the evidence.  The concession which Mrs Gumbert made in written submissions was that the trial judge’s allowance for future services of 11 hours per week for the balance of Mrs Gumbert’s life was wrong.  The error lay in overlooking the fact that at the date of the trial the youngest of the Gumbert children were 10 year old twins and any need for domestic assistance in relation to them would cease around the time of each attaining 21.  In the light of that concession Mrs Gumbert prepared calculations which, apart from arguments of principle rejected above, were not the subject of attack by Mr Gumbert.  The result of the calculations is that the figure of $116,364 should be substituted for the trial judge’s allowance of $144,474 for future care.

    Future Economic Loss/Loss of Future Earning Capacity

21. The primary argument of Mr Gumbert was that interference with future earning capacity was very slight.  He accepted that if Mrs Gumbert’s back flared up it would be necessary for her to take a brief amount of time off.  But he submitted that the trial judge’s award of $75,000 for the loss of future earning capacity was grossly excessive.  He submitted that an appropriate figure would be $5,000, or at most $25,000.

22. Whether there can be appellate interference with the figure selected by the trial judge depends on an assessment of the medical evidence in relation to Mrs Gumbert.  Medical evidence referred to above indicates that her difficulties are likely to be greater than a mere occasional flaring up of her back symptoms.  That is supported by evidence given by Mrs Gumbert in answer to a question about her back pain:

    “How often these days is it really severe?” 

    She answered:

    “Well it’s hard to say in the period of a week, but in the period of say a month there would be maybe a week or more that I really can’t do much, including going to the office sometimes, I just don’t go.”

23. In the circumstances the figure of $75,000 as compensation for the loss of future earning capacity is not appellably high. 

    Cross-Appeal

24. Originally this had four aspects, but one was not pressed.  Another (the correction in relation to future home care services) has been dealt with above.  The remaining two matters concern past economic loss and future economic loss. 

    Past Economic Loss

25. Mrs Gumbert complained that the trial judge did not allow anything in relation to economic loss for the period of approximately four years between the date of the accident and the date of the trial.

26. Mrs Gumbert pointed to evidence that she was off work for two months after the accident, and submitted that it must follow that there was a loss of past earning capacity.  The problem is that damages cannot be recovered in that respect unless there is evidence of loss of earnings, and the trial judge said that there was no such evidence.  In those circumstances this aspect of the cross-appeal must fail.

    Future Economic Loss

27. Mrs Gumbert’s criticism of the figure of $75,000 for future economic loss was contended to be the equivalent of a little under a net weekly loss of $160 on the 5% tables for 15 years representing the balance of her working life at trial (assuming retirement at the age of 65).  It was submitted that she had a significantly reduced capacity for working even a standard 40 hour week and that this rendered the allowance made inadequate.  It was submitted that the allowance was even more inadequate because the evidence was that Mrs Gumbert was heading towards “de facto partnership” with her husband.  It was submitted that a more appropriate figure to adopt as the starting point for calculating a figure for future economic loss was $300 net per week, which over a 15 year period on the 5% tables gives an undiscounted figure of $166,500.  It was submitted that a 10% contingency discount factor should be applied because of the relative shortness of the period involved:  this led to a figure of approximately $150,000 to be substituted for the trial judge’s calculation of $75,000.  Underlying the argument was the contention that had the accident not happened, Mrs Gumbert would have qualified as a solicitor and begun working full time in her husband’s business.  Because of the accident, she had missed out on the acquisition of practical training which would have enabled her to achieve a level in the firm which she was expected to reach but can no longer reach. 

28. The figure selected by the trial judge does not appear to be appellably low, because there is no evidence for preferring the postulated figure of $300 net per week as compared to the figure of $160 per week derivable from the trial judge’s calculation of $75,000.  There is no evidentiary correlation between Mrs Gumbert’s loss of earning capacity and the difference between $300 and $160 per week. 

    Conclusion

29. The appeal should be allowed to the extent of substituting for the trial judge’s verdict of $313,797.98 the figure of $285,687.98.  This change is the result of Mrs Gumbert’s concession in relation to future domestic assistance.  In view of the extremely limited success of the appellant on the appeal, and the fact that that success was due entirely to a concession made in written submissions before oral argument by the respondent, the appellant should pay the respondent’s costs of the appeal.  The cross-appeal should be dismissed and the cross-appellant should pay the cross-respondent’s costs of the cross-appeal.

30. The orders will be as follows:

    1.        The figure of $285,687.98 should be substituted for the verdict
               figure of $313,797.98.

    2.        The appeal is otherwise dismissed. 

    3.        The appellant is to pay the respondent’s costs of the appeal.

    4.        The cross-appeal is dismissed.

    5.        The cross-appellant is to pay the cross-respondent’s costs of

    the cross-appeal.

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LAST UPDATED:    25/02/2000