Hughes v Cornwall
[2001] WASCA 157
•21 MAY 2001
HUGHES -v- CORNWALL [2001] WASCA 157
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 157 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:25/2000 | 12 OCTOBER 2000 | |
| Coram: | MALCOLM CJ PIDGEON J MURRAY J | 21/05/01 | |
| 49 | Judgment Part: | 1 of 1 | |
| Result: | Subject to agreed reduction in damages, appeal dismissed Cross-appeal allowed and damages for past economic loss to date of trial increased and award made for future loss of earning capacity | ||
| PDF Version |
| Parties: | ANTHONY HOWARD HUGHES KAREN DIANN CORNWALL |
Catchwords: | Damages Measure and remoteness of damages in actions for tort Road accident cases General damages Assessment of percentage of "most extreme case" |
Legislation: | Motor Vehicle (Third Party Insurance) Act 1943 (WA), s 3C |
Case References: | Chappel v Hart (1998) 195 CLR 232 Hendrie v Rusli [2000] WASCA 249 Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 March v Stramare (E & M H) Pty Ltd (1991) 171 CLR 506 Southgate v Waterford (1990) 21 NSWLR 427 Wylde v 'Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997 Bennett v Minister of Community Welfare (1992) 176 CLR 408 Medlin v State Government Insurance Commission (1995) 182 CLR 1 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : HUGHES -v- CORNWALL [2001] WASCA 157 CORAM : MALCOLM CJ
- PIDGEON J
MURRAY J
- Appellant (Defendant)
AND
KAREN DIANN CORNWALL
Respondent (Plaintiff)
Catchwords:
Damages - Measure and remoteness of damages in actions for tort - Road accident cases - General damages - Assessment of percentage of "most extreme case"
Legislation:
Motor Vehicle (Third Party Insurance) Act 1943 (WA), s 3C
(Page 2)
Result:
Subject to agreed reduction in damages, appeal dismissed
Cross-appeal allowed and damages for past economic loss to date of trial increased and award made for future loss of earning capacity
Representation:
Counsel:
Appellant (Defendant) : Mr J R Brooksby
Respondent (Plaintiff) : Mr D R Clyne
Solicitors:
Appellant (Defendant) : Greenland Brooksby
Respondent (Plaintiff) : Simon Walters
Case(s) referred to in judgment(s):
Chappel v Hart (1998) 195 CLR 232
Hendrie v Rusli [2000] WASCA 249
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
March v Stramare (E & M H) Pty Ltd (1991) 171 CLR 506
Southgate v Waterford (1990) 21 NSWLR 427
Wylde v 'Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997
Case(s) also cited:
Bennett v Minister of Community Welfare (1992) 176 CLR 408
Medlin v State Government Insurance Commission (1995) 182 CLR 1
(Page 3)
1 MALCOLM CJ: This was an appeal against a judgment of Groves DCJ in the District Court dated 22 February 2000 by which the learned Judge awarded the respondent $24,980.36 damages for negligence as a result of personal injuries suffered by the respondent in a motor vehicle accident on 21 March 1997. Liability was admitted by the appellant and the trial was confined to the assessment of damages.
2 The damages awarded were as follows:
General damages $16,875.00
Special damages 491.00
Future medical expenses 3,000.00
Past economic loss 4,486.68
Out of pocket expenses 128.28
Total $24,980.96
3 A notable feature of this case is that the trial was heard over three days, 12 witnesses were called, in addition to the respondent, and the transcript of evidence comprises some 225 pages, together with a large number of exhibits comprising some 388 pages.
4 The appellant appeals against the damages awarded on three grounds, namely:
1. "The general damages awarded to the Respondent (Plaintiff) on the basis of 12.5 per cent of a most extreme case are beyond a sound discretionary judgment given the nature of the Respondent's (Plaintiff's) injuries and in particular given the findings of the trial Judge to the effect that:
(a) the Respondent (Plaintiff) suffered a soft tissue injury of mild severity to her cervical spine;
(b) she sustained a soft tissue injury or non bone injury to her lumbar spine;
(c) the Respondent's (Plaintiff's) accident-related injuries had resolved; and
(d) such matters of which she complained after 23 October 1997 were not the consequence of her accident."
2. "The trial Judge erred in law in awarding damages for past economic loss together with interest given that the Respondent
(Page 4)
- (Plaintiff) had not suffered any such loss but had been paid in full by her employer."
- 3. "The trial Judge erred in fact in finding that the Respondent (Plaintiff) was entitled to damages representing the cost of future medical treatment, given his Honour's findings that all her injuries have settled. Alternatively the award for future medical expenses is beyond that which would be allowed in a reasonable and sound discretionary judgment. Alternatively, the award was against the weight of the medical evidence."
5 The respondent cross-appeals against the award of damages for past economic loss in the sum of $4,486.68 and the dismissal of her claim for loss of earning capacity and seeks an increase in the award for past economic loss and an award of damages for loss of earning capacity. I shall refer to the grounds of cross-appeal in due course.
6 The respondent claimed damages against the appellant for injuries she suffered in a motor vehicle accident on 21 March 1997. Liability was admitted, but the appellant denied that the respondent suffered the loss, injury or damage alleged and pleaded, in particular, that:
"(a) Any psychological condition or symptoms from which the [respondent] has suffered or may be suffering are not caused by the motor vehicle accident pleaded in paragraph 2 of the statement of claim, but were caused by a gynaecological condition suffered by the [respondent];
(b) Any economic losses which the [respondent] may be found to have suffered were not caused by the motor vehicle accident pleaded in paragraph 3 of the statement of claim, but were caused by the termination of the [respondent's] employment by reason of her unsatisfactory performance of her duties over a period of time commencing prior to the date of the motor vehicle accident."
7 It is apparent that, as the learned trial Judge put it:
"… the degree, if any, to which the [respondent's] gynaecological condition was causative of a psychological condition or symptoms and the extent to which the accident may have been causative of her losing her employment is very much in issue in these proceedings."
(Page 5)
8 The significance of this issue is also apparent from the grounds of the cross-appeal by which the respondent seeks an increase in the award of damages for past economic loss as well as an award for loss of earning capacity.
The Respondent's Pre-Accident History
9 After dealing with introductory matters the learned Judge recounted the respondent's pre-accident history, her post-accident work history and her medical history. The respondent was aged 24 at the time of the accident. She had commenced employment with Challenge Bank on 14 May 1990. She trained at the Wanneroo branch and subsequently worked at other branches as well as being a member of the relief team filling in at different branches where necessary. Her designation was Customer Service Officer (CSO). On 25 October 1995 a performance assessment of her work was undertaken by her supervisor at the Balcatta branch. Her Quality of Work was rated at the higher end of the scale of unsatisfactory because, although she had the ability to be accurate, she was "continually disorganised and makes several errors". Her Quantity of Work was rated at the low end of satisfactory on the basis that, while work was completed within the required time frame, she was often disorganised and untidy with her balancing which in turn created discrepancies. Her Communications Skills were rated as above the required standard. Her Team Participation Skills were rated at the high end of unsatisfactory on the basis that she would neglect teller duties to do back office duties or balancing, which caused friction among other staff. Her Individual Skills were rated at the high end of unsatisfactory because she was sometimes late to work and had to rush her start of day procedures, resulting in errors. Her supervisor noted that she had some excellent qualities but was "let down by her careless approach to work".
10 In her response the respondent acknowledged that this was a disappointing appraisal. Notwithstanding this assessment, she was appointed to the position of Senior CSO at the Floreat branch in February 1996.
11 The learned Judge found that:
"Banking was the [respondent's] chosen career. She impressed as being a career oriented person. After appointment as second-in-charge at Floreat she saw her next career step was to become a Supervisor and then to be a Manager. She intended to continue working in the bank up until the age of 31 when she
(Page 6)
- proposed to commence a family but thereafter it was her stated intention to return to the bank part-time."
12 In November 1996 Challenge Bank and Westpac Banking Corporation announced a merger. For Challenge staff the integration of the two banks' operations required training to familiarise staff with a different computer system, new policies and banking procedures to be implemented and new products to be marketed. At Floreat each of the banks had a branch which were to be integrated into one. The respondent spent a week training at the Westpac site and there was ongoing contact between officers of the two branches. The respondent felt confident with the new procedures by about January or February 1997.
13 As part of the merger process, all Challenge staff underwent performance appraisals in February 1997. The respondent's appraisal was undertaken by both her Challenge Customer Service Manager (CSM) and the Westpac Floreat CSM. Areas of concern regarding her performance were raised. These included the making of frequent mistakes, some relating to simple issues which placed pressure on fellow staff and involved frequent references to the CSM of simple issues, which should have been known to the respondent. The respondent was placed on an Interim Performance Review for six weekly intervals commencing 10 March 1997. This was, in effect, a "poor performance" rating which identified the staff member as not performing to the required standard. A process was then put in place to manage that and give the staff member an opportunity to improve. The respondent was disappointed by this rating and felt that she was being placed on probation.
14 On 10 March 1997 the respondent acted "outside of compliance" in the opening of a new account. This was drawn to her attention. She failed to follow instructions in rectifying the situation. On 19 March 1997 she failed to process a credit relating to a traveller's cheque. This was not discovered until 4 April 1997. The respondent could not explain how the cheque had been misplaced and noted "I cannot believe that I was stupid enough to make this error".
15 On the day of the accident on 21 March 1997, the respondent was on a rostered day off. She was in her motor vehicle which was stationary at traffic lights on Ocean Reef Road near the Mitchell Freeway. A vehicle driven by the appellant drove into the rear of her vehicle. She did not see the appellant's vehicle before impact and had no warning of it. The impact caused the back of the respondent's head to hit the headrest. Although her head hurt, she was able to get out of her vehicle. She was
(Page 7)
- taken by ambulance to the Emergency Department of the Joondalup Health Campus from which she was subsequently discharged and allowed to go home wearing a soft collar. She attended her general practitioner the next day and was certified unfit for four weeks.
16 After the accident the respondent returned to work on a graduated programme which involved undertaking minor backroom duties. She commenced working two hours per day, three days per week. Her progress at work was monitored weekly and modified according to her symptoms. Her working hours were increased in half hour blocks over the following weeks.
17 Because of her poor performance rating at the time of the accident, she remained subject to the requirements of performance reviews at six-weekly intervals. Her review for the period 10 - 20 March 1997 was completed following her return to work after the accident. The review covered the two week period immediately prior to the accident. Her overall performance rating was "Effective". This was defined as:
"Met the majority of competence requirements and objectives. The officer has performed in an able manner and achieved the performance requirements of the job."
- The CSM also noted that:
"… training was undertaken during the first week of this period and appeared to be quite effective for Karen's knowledge of tasks and duties related to CSO role. Good improvement displayed in errors becoming less frequent."
"Karen has displayed considerable improvement mainly concerning her job knowledge and teamwork ability. Karen now requires minimal assistance for completion of assigned tasks and displayed a better understanding of the CSO tasks. Karen has become more conscientious with follow-up of correct
(Page 8)
- forms and the accurate completion of such forms or procedures. Karen is extremely polite and friendly to customers and has received compliments on her courteous manner on a few occasions."
19 Shortly afterwards, the former branches of the two banks at Floreat were amalgamated into a single branch. As the respondent was unable to physically assist in the moving process, she was transferred to the Northlands branch for approximately two months. While at Northlands she was still attending doctors', physiotherapy and hydrotherapy appointments. As she had run out of sick leave, she was using up her annual leave. By the time she left Northlands she was working six hours per day and, for at least the last three weeks, was undertaking teller duties due to a shortage of tellers. Her manager noted on 4 August 1997 that she had been monitoring the respondent's performance at Northlands which she described as "acceptable" overall, although she had occasion to speak to her on several occasions about punctuality and for failure on two occasions to follow correct banking procedures.
20 The respondent returned to the new Challenge Bank branch at Floreat on 8 August 1997. Counsel for the appellant conceded that her performance "improved slightly, but still required monitoring". It was submitted that the respondent was then given "a last opportunity to perform to the bank's standards". She had been informed that the CSO positions had been filled by the amalgamation and that she would be placed on teller duties. On 13 August 1997 the respondent attended a formal counselling session conducted by Ms Bull, the branch CSM, in the presence of Ms Natalie Hays, Regional Operations Manager. There was discussion of her "unacceptable performance levels". Reference was made to the earlier appraisals and the matters raised by the Northlands CSM. The expectations of the bank regarding attitude and work performance were outlined. The respondent was notified that her performance in these areas would be monitored weekly with a full performance review after two months. She was told her ongoing suitability for employment was under consideration and:
"… that the bank will provide … one further, final, opportunity where her performance will be assessed against agreed objectives and competences weekly …"
21 The respondent said in evidence that she was shocked to be told that her performance was not satisfactory and that she had two months to
(Page 9)
- prove her worth to the bank. She said she was willing to take up the challenge. In her written comments made after the meeting she said:
"I would like to believe that I have a high level of dedication and application. However, I will say that the neck injury coupled with some other medical problems that have come up - laser treatment on my cervix for possible cervical cancer - has given me cause to worry, be concerned, generally feel depressed about and annoyed with and sick and tired of if you can understand my meaning - that may impact on my ability to consistently meet this objective."
"Over the following weeks a litany of errors, failure to comply with the bank's standards or procedures and her relationship with other staff members was recorded by the CSM by way of diary memos. Sometimes there were a number of memos on any one day. On each memo the [respondent] recorded her response and outlined her action plan to ensure that the same errors or breaches did not occur again. To reinforce her awareness she put post-it notes around her computer screen to remind her of proper procedures where she had breached previously. Matters the subject of such memos included security breaches, receipt of third party cheque deposits, cash errors, dress standards, discrepancies in balancing, proof errors, compliance with FID requirements, etc. Undoubtedly some such issues and errors were minor in nature however the majority would be seen to be more serious in nature particularly having regard to the numerous failures to comply with the procedures laid down by the bank. They could simply not be overlooked. Understandably the [respondent] felt that she was under the microscope and her every activity monitored. On occasion she felt that she was possibly overly cautious in what she did as she was particularly concerned not to make any errors. Her confidence in her own ability was impacted. Be that as it may she continued to make errors which were brought to her attention. Weekly checklists were compiled and weekly discussions with her CSM were undertaken to discuss her performance and other issues."
(Page 10)
23 In a letter dated 15 September 1997 to Ms Rachel Sackville of the Finance Sector Union the respondent wrote that she felt "… like I'm being harassed". She was anxious and did not wish to be terminated saying:
"I believe I can be an asset to the bank and now that I'm nearly all better since my car accident … the consistencies will show up again."
24 Her purpose in contacting the Union representative was to ascertain whether she might benefit from Union representation at the next formal performance review. In this context, his Honour noted that:
"The 26 September 1997 weekly discussion appears to have been quite heated with the [respondent] accusing her CSS and CSM of inciting a vendetta against her. That was denied and the [respondent] was counselled to recognise that she was making errors and encouraged to avoid making those errors and thereby lift her performance. Nevertheless the diary memos continued evidencing more errors and failure to accord with bank procedures."
25 The third formal counselling session was on 23 October 1997. This reviewed performance for the period 11 August to 10 October 1997. As the respondent had been working as a teller during this period she was reviewed in that capacity. A teller is a lower graded role than that of a CSO. Consequently, her performance was reviewed against this lesser standard. The rating was "Unacceptable against competency requirements and objectives" and it was recorded that her performance would be subject to a monthly review. The comments on her overall performance were:
"Karen is always found to be friendly, polite and smiling towards customers and staff. Karen also received a verbal comment from a customer complimenting Karen on her service standards. Karen also achieved excellent CFS results. Karen takes interest in all staff and enjoys socialising.
During this period Karen required training or coaching concerning: steps involved with locating a cash error, how to process FID when paid by cash, time sheet completion and acceptance of third party cheque deposits. Karen has been observed offering her assistance to fellow staff on only a few occasions, mainly within the last 2 or 3 weeks.
(Page 11)
- Numerous errors have occurred over the last 9 weeks resulting in a total of 27 memos being completed. Main areas of concern in Karen's overall performance relating to these memos are: processing of credit card payments via proof, cash dockets not being processed correctly, batches being out of balance, third party check deposits, FID processing errors and general processing errors in Karen's front office value transactions."
26 Following this review the respondent was informed that, as her performance levels were not acceptable, her file would be referred to the Human Resources Section of the bank to enable the bank to consider all of its options, including her dismissal. The respondent was given 24 hours to place any matters in writing to the bank to enable full consideration to be given to her circumstances. In a memorandum dated 24 October 1997 to the Manager, Human Resources, the respondent said:
"In March of this year I had a car accident which I believe has had a residual effect on me and has impacted negatively on my work performance. My accident meant that from March to August of this year I was on a graduated return to work program. I have also been on medication, antidepressants, which was prescribed to relieve my neck injury and to regulate my sleep patterns. I believe this medication may have affected my memory and concentration. I will return to my doctor to confirm the side effects of my medication. If, as I suspect, my memory loss and lack of concentration are side effects I will see if my doctor can prescribe alternative medication.
In addition in August I suffered further health complication which required surgery and increased my stress.
…
I have found the whole process of my performance review, and in particular, the issuing of the diary memos, very stressful and demoralising."
27 On 29 October 1997 the respondent attended her general practitioner who certified her to be not fit for work. Arrangements were made for the respondent to consult a clinical psychologist and a pain specialist. On 19 January 1998 she was certified as fit to go back to work part-time. She contacted the bank and, on 20 January 1998, she was informed by the bank's Head Office that her employment was to be terminated forthwith.
(Page 12)
The respondent's medical treatment
28 After the accident on 21 March 1997 the respondent was conveyed to the Emergency Department of the Joondalup Health Campus. She complained of neck pain and limitation of movement. Examination revealed some tenderness over the paraspinal muscles. There was a near full range of cervical spine movement with no evidence of neurological dysfunction in the upper or lower limbs. She was discharged home with a soft collar.
29 On presentation to her general practitioner the next day she complained of pain in her neck, upper and lower back, and right shoulder. She was certified unfit for work for one month. She was referred for physiotherapy and later hydrotherapy, both of which were continued through to the end of July 1997.
30 Towards the end of July she was referred to Dr S Baskaranathan, a consultant physician, complaining of musculo skeletal symptoms, including sore neck and shoulders, jaw pain and general tiredness. By this time she was on the graduated return to work programme and was working six hours, five days a week. After examination, Dr Baskaranathan concluded that the soft tissue injury sustained in the motor vehicle accident had become more of a generalised regional myofascial pain syndrome. He prescribed Prothiaden, an antidepressant, which he informed the respondent would help her with her neck pain, sleeping and jaw pain.
31 On 6 August 1997 the respondent was seen by Dr John Rosenthal, a specialist in rehabilitation medicine, who was called by the appellant. He noted that the respondent had been seen by Dr Baskaranathan, who had prescribed Prothiaden, but that the respondent had not commenced taking it. From the history which he obtained, he noted there had been significant improvement with the respondent's headaches, being infrequent and usually occurring with stress, fatigue and tightening the posterior musculature. He noted that her range of cervical movement was good. He recorded her present condition as being that her symptomatology was predominantly myalgic (muscle pain). He noted clinical evidence of parafunctional jaw activity with the characteristic associated sleep disturbance and regional muscle hyperalgesia. He proposed that she should take the Prothiaden to regulate her sleep pattern and that she should see Dr Delcanho for assessment of her temporomandibular joint function. He regarded her as being fit to work normal hours as a Bank Customer Service Officer.
(Page 13)
32 The respondent then started taking the Prothiaden, initially every second day. She said that they helped her, although they did have the side effects which Dr Baskaranathan had indicated to her that they would. These were dried mouth and blurred vision. He had told her it was an antidepressant drug.
33 On 5 September 1997 Dr Baskaranathan reviewed the respondent. She reported an overall improvement in her symptoms. She continued to have bilateral jaw pain from the temporomandibular joints, which he suspected was due to grinding her teeth in a non-restorative sleep. He felt that this would improve when her sleep was corrected to restorative sleep with the help of Prothiaden. He noted that the respondent had not been regular with the Prothiaden. His opinion was that the respondent had recovered sufficiently to return to her normal hours of work as a Bank CSO.
34 On 15 September 1997 Dr Shane Wignell reported to the bank that:
"Karen's symptoms have improved to the point where she could return to full-time hours. However, I feel she should avoid heavy lifting, tasks that involve lifting to above shoulder height."
35 The respondent returned to full-time work on that day. This was also the day on which she wrote to her Union representative informing her that she was "… nearly all better since my car accident …".
36 In the meantime, on 26 June 1997, the respondent had been referred to Dr M Oehlers for a slightly abnormal Pap smear. On 3 July 1997 she underwent a coloposcopy. She was reviewed by Dr Oehlers on 22 July 1997. Cervical biopsies had indicated Cervical Intra Epithelial Neoplasia II/III. On that occasion, he discussed with her the requirement for cervical laser treatment. This was discussed again on 27 August 1997 during which other factors, including possible future infertility, were mentioned. In a report dated 19 August 1997 Dr Oehlers noted that the respondent:
"… seemed to accept the discussion with an open mind and she was obviously concerned at the time of the severity of this condition."
- On 28 August 1997 the respondent underwent cervical laser treatment. The laser treatment of the cervix was apparently successful. Follow-up Pap smears have been satisfactory.
(Page 14)
37 As previously mentioned, on 23 October 1997 the respondent had her third formal counselling with the bank. She later spoke to her neighbour, a Mrs Margaret Roberts, an enrolled nurse, who raised with her the possible side effects of Prothiaden. That prompted her to go to a chemist and obtain a print-out of such side effects. The respondent identified that she was experiencing five of the nine identified side effects. She discontinued taking the Prothiaden. On 29 October 1997 she was diagnosed by her general practitioner as having developed post-trauma stress and was declared not fit for work for about two weeks. She was referred to a clinical psychologist, Dr William Douglas, and a pain specialist, Dr H Hamzah. In his report to the respondent's general practitioner dated 10 November 1997 Dr Douglas reported that the respondent presented with a range of symptoms, a number of which he described as consistent with anxiety. Based upon her history, he expressed the view that:
"… She continues to suffer from symptoms of a depressive illness which arise primarily as a result of her pain and disability, and further compounded by the frustration of returning to her pre-accident level of work performance."
38 Dr Hamzah is a consultant in anaesthesia and pain management. Upon examination on 11 November 1997, he noted movement of her cervical spine was good in all directions but there was tenderness over the greater occipital nerves bilaterally and some tenderness over the facetal areas at C5/C6 bilaterally. The latter discomfort was addressed with a facet joint injection on 15 December 1997, which provided some relief, and on 9 February 1998 a radio frequency rhizolysis was performed.
39 The respondent was referred to Dr Robert Delcanho, a specialist in orofacial pain for assessment of her temporomandibular joint pain. He saw her on 24 December 1997 and, on the clinical history and examination, concluded there was some evidence of temporomandibular joint problems which he believed was of a soft tissue myofascial nature with input from the cervical and masticatory muscles. He was not of opinion that her TM-joints suffered direct injury with the problems being suffered in that area of a secondary myofascial nature. Conservative treatment was recommended. An occlusal splint was fitted. At subsequent reviews, significant improvement was noted with only occasional use of the splint with intermittent jaw pain principally brought on if her neck pain was aggravated.
(Page 15)
40 The respondent had a medico/legal review by Dr John Rosenthal on behalf of the appellant on 23 February 1998. On examination he noted scalp and diffuse muscle tenderness medial to and above both scapulae extending upwards along the paracervical musculature. Range of neck movement was reasonable and no muscle spasm was apparent. It was his opinion that the respondent's ongoing symptoms were myalgic. He noted the associated chronic stress situation, largely due to employment and psychosocial factors. Nevertheless, in his opinion, the motor vehicle accident had produced some stress as evidenced by the sleep disturbance and parafunctional jaw activity. He did not think that facet joint injections and rhizotomies were a good option for her. He described her symptoms as myalgic with centrally mediated secondary hyperalgesia. He did not think that her problem was facetal.
41 Following their final reviews, both Dr Rosenthal and Dr Baskaranathan expressed largely similar opinions which were summarised by the learned trial Judge as follows:
"(i) On examination the range of cervical movements was hesitant but full with some myalgic end range discomfort. There was some persisting scalp and masticatory muscle tenderness and myalgic nature of her symptoms was confirmed with her complaint of discomfort on full arm elevation.
(ii) Her accident caused injury had not been serious and her myalgic symptoms were completely reversible. Had she been involved in an appropriate active physical rehabilitation programme her recovery would have been much quicker.
(iii) There was no skeletal pathology which could perpetuate her symptoms.
(iv) Her symptoms associated with her parafunctional jaw activity had reasonably settled with the use of the occlusal splint.
(v) The type of fibromyalgic symptoms she described were frequently associated with stress and is often perpetuated by stress and it often occurs without there being any antecedent soft tissue trauma.
(Page 16)
- (vi) They were not of opinion that she had sustained any physical residual disability as a result of the accident. This was a view also expressed by Dr Hamzah."
42 Four witnesses gave evidence in support of the respondent. The first of these was Mrs Margaret Roberts, an enrolled nurse, who had been a neighbour of the respondent for four years. She recalled an occasion (while the respondent was working at the Northlands branch) when she observed the respondent distressed when her car had a flat battery and she would be late for work. Another occasion was prior to the respondent's work appraisal toward the end of October 1997. Mrs Roberts described the respondent as "waffling, not making sense and not herself". The respondent told her that she was having an appraisal the next day. When they next met shortly afterwards, the respondent told her that she had been taking Prothiaden. Mrs Roberts told her of the side effects of this medication which prompted the respondent to obtain a print-out from a chemist. When Mrs Roberts saw the respondent subsequently, it appeared to her that she was more her normal self. It was within two to three months after giving her the information about the Prothiaden that the respondent was back to normal.
43 Ms Susan Baile was a Challenge Bank employee who first met the respondent at the Innaloo branch when the latter was relieving. She recalled the respondent as being easygoing, happy go lucky, friendly and good with customers and staff. Ms Baile was second-in-charge at Northlands when the respondent came there as additional staff. She was on light duties. She described the respondent as being a very different person who had obvious physical pain and was not coping with her job or life. She described her as being close to tears a lot of the time, under pressure, sick, shaking, forgetting things and generally unwell physically. She had seen the respondent since she left the bank and described her as being back to where she was before the accident, namely, relaxed and normal.
44 Ms Robertina Kelly had been a Challenge Bank employee at Floreat for 14 years and worked part-time. She described the respondent prior to the accident as helpful, obliging with customers and a person who knew her job. They had only worked together for a short time after the accident. The respondent was on the teller line. Ms Kelly noted a definite change in that the respondent was vague, apparently had difficulty remembering procedures, as evidenced by post-it notes around her terminal, and was quiet, distant, a little bit emotional and easily upset. The witness did not indicate precisely when this was. She gave no
(Page 17)
- evidence whether or not she was aware of any factors other than the accident which might have contributed to the change.
45 Mr Brendan Radalj was employed as a CSO at the Floreat branch of the Challenge Bank. He and the respondent had worked together at a number of branches earlier. He described the respondent as being good at her work and a person with a happy, cheery personality. Post-accident, when the two Floreat branches merged, they worked together again. He described the respondent as being a different personality in that she was quiet, kept to herself, sometimes not happy and totally different to the person he had previously known. He was not aware what she may have been unhappy about.
46 Against this background, a critical issue in the case was whether the Prothiaden, which was prescribed by Dr Baskaranathan to help with the neck pain, disrupted sleep and jaw pain, could have caused or contributed to the respondent's unsatisfactory performance at work in the period August, September and October 1997. It was contended at the trial that the side effects of Prothiaden include memory loss and lack of concentration which the respondent ascribed to the use of Prothiaden. The learned Judge noted that, while the respondent said that she told Dr Oehlers that she was on Prothiaden and that she was having dried mouth, blurred vision and dizziness, no reference was made to this in his reports which were tendered by consent and he was not called to give evidence. The respondent gave evidence that when she saw Dr Baskaranathan on 5 September, she had a skin rash and inquired if it could be caused by the Prothiaden. It was her evidence that he told her not to worry about it. Although she was then experiencing dried mouth, dizziness and blurred vision, she did not tell Dr Baskaranathan about that, as they were symptoms which he had told her to expect. She did not mention impaired memory or concentration to him. There was no evidence that she told him of any difficulties or problems she might have been having at work, or any other factors which might have caused her concern or stress. Although it was Dr Baskaranathan's evidence that the respondent had told him that she had not been regular with Prothiaden (as noted in his report), the respondent said that she had taken Prothiaden regularly from early August.
47 On 29 October 1997 the respondent saw Dr S Edwardes at the Balga Medical Centre. She had previously seen a Dr Vasantha Preetham at that practice following her motor vehicle accident and he had managed her accident-related injuries up to 9 May 1997. Dr Edwardes certified her as not fit for work for about two weeks. Arrangements were made for the
(Page 18)
- respondent to consult a clinical psychologist and a pain specialist. Her manuscript note dated 29 October 1997 stated:
"In the last 2 months Karen was put on medication to help her symptoms but unfortunately she experienced troublesome side effect of the medication.
Problem with concentration and memory, etc.
She is now developing post trauma stress."
"About 2-3 months ago Karen was put on Prothiaden by her previous GP to help her symptoms but unfortunately she experienced side effects of Prothiaden which were impaired alertness, dry mouth, dizziness, skin rash. Karen has stopped this medication since 23 October 1997 and felt a lot better. But she is still suffering from post trauma stress."
49 In cross-examination Dr Edwardes readily conceded that insofar as the reference to Prothiaden, troubles and side effects, was concerned, she had simply set out what the respondent had told her. She said that the respondent was stressed and tearful at the consultation. Dr Edwardes said that she was not aware of any work problems which the respondent might have been having at that time. Her report to the respondent's solicitors dated 9 December 1997 indicated that at some point in time before then the respondent had told her that she was worried about losing her job. Dr Edwardes did not express a medical opinion about the known side effects of Prothiaden, if any.
50 The clinical psychologist, Dr William Douglas, who the respondent saw on or about 10 November 1997, detailed the history he was given in his report of that date. Although the report does not mention Prothiaden, he was told of "impaired concentration, memory and general work performance being below par". He reported that:
"I gained the impression that up until the time of her motor vehicle accident her working history had been satisfactory with the bank, but during the course of her rehabilitation and return to work there had been problems noted in her work performance. During the months of August and September she felt as though she was under great pressure at work which I believe compounded an underlying and substantial depressive
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- disorder. In my view, she continues to suffer from symptoms of a depressive illness which arise primarily as a result of her pain and disability and further compounded by the frustration of returning to her pre-accident level of work performance."
51 Dr Douglas acknowledged in cross-examination that he was reliant upon what the respondent had told him in relation to her symptoms. He was not told that pre-accident the respondent had been put on a "poor performance" rating with regular reviews. He acknowledged that the symptoms with which the respondent presented would be consistent with those you would expect to find in a person who had thought or had been told in August 1997 that they had cervical cancer, who believed that she was being harassed at work and that she was about to lose her job after having been with the same employer for some years. He agreed that the symptoms with which she presented were consistent with depression arising from her employment situation and gynaecological problems and could have arisen quite apart from her motor vehicle accident situation. Impaired concentration, memory deficit and general work performance being below par were symptoms of a depressed mood. The learned Judge commented that:
"His conclusion that her depressive illness arose primarily from accident related injuries was thus questionable."
- This comment does not exclude the accident as a contributing cause.
52 In a report dated 9 December 1997 obtained by the Finance Sector Union and submitted to the bank to try and retain the respondent's employment, Dr Douglas reported that:
"I also confirm that in my opinion [the respondent's] impaired concentration, memory and general work performance during the months of August and October was primarily due to an underlying depressive illness where symptoms of impaired concentration were almost certainly compounded by the antidepressant medication that she was taking at the time. In hindsight it seems quite clear that she was having an adverse reaction to this medication which was actually making her symptoms worse."
53 The learned Judge commented on this evidence as follows:
"That may be understood to be saying that the antidepressant medication was not the underlying cause of impaired
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- concentration, memory lapses and poor work performance. Underlying that was the [respondent's] depressed mood which could be attributed to stress and anxiety associated with her work place situation. As much as is clear is that Dr Douglas once he was aware of all those matters which could have been causative of the symptoms with which the [respondent] presented could not attribute them solely to the motor vehicle accident. Furthermore he did not attribute the underlying depressive illness to the medication itself. It may have been a compounding factor but was not the causative one. Even so, that was an ex post facto conclusion which lacked any other credible support."
- These comments likewise do not exclude the accident as a contributing cause.
54 The learned Judge returned to the evidence of Dr Baskaranathan who said that he prescribed Prothiaden at the lowest dose rate of 25mg at night. He had warned the respondent of the side effects on mental alertness and drowsiness if the drug was taken in excess doses. He did not go through a full list of all side effects, but told her of the common side effects which occurred. The respondent was experiencing disrupted sleep patterns and bilateral jaw pain. The Prothiaden was prescribed to enable restorative sleep which would in turn reduce the grinding of her teeth and hence her jaw pain. On review on 5 September 1997 she continued to have jaw pain. She told him that she had not been regular with the Prothiaden. He advised her to take it every night to restore her sleep pattern. Asked in cross-examination if she had complained of any side effects at this consultation he replied, "Not really, no otherwise I would have alluded to that in the report". There was no evidence of the respondent having mentioned what was happening in her work place or her then recent gynaecological problem to him.
55 The learned Judge also returned to the evidence of Dr John Rosenthal. As has been seen, he saw the respondent on 6 August 1997. She told him that she had been given a prescription for Prothiaden, but had not commenced taking it. Again, there was no evidence that the respondent had mentioned to him at that time either the events which were happening in her work place or the gynaecological problem which had been diagnosed and for which she was then awaiting laser treatment.
56 It was on the basis of the evidence which I have recounted that the respondent contended that all the errors and procedural breaches which she made in the course of her employment in the period August - October
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- 1997 were a consequence of the injuries sustained in her accident and the adverse side effects which she experienced, as a result of taking Prothiaden. In particular, she claimed that her lack of concentration and loss of memory were due to taking that medication. The learned trial Judge rejected that claim saying:
"On a close analysis of the evidence I am not able to accept that proposition. It ignores the fact of all those other circumstances which were giving rise to stress and anxiety in the [respondent's] life at that time. It also overlooks the fact that prior to commencing the medication her performance at work was under scrutiny. In many instances the errors which she made in those months were of a similar type to those which she had made even prior to the accident. For example in October 1995 there were references to discrepancies in balancing, neglecting teller duties, lateness for work and careless approach to work. In February 1997 reference to frequent mistakes and referring simple matters which should have been known to her to others. On 10 March 1997 failing to comply with bank procedures and not assisting other staff when customers were waiting. Before going on the medication and when she was at Northlands Susan Baile noted that she would forget things and was under pressure. Nor is it consistent with the statement in her letter of 15 September where she wrote of being '…nearly all better since my car accident…'. If she were suffering the symptoms of which she complained it does not sit well with that statement. Her explanation was that she did not realise until towards the end of October that she could attribute everything to the claimed side effects of the medication. She did not mention to either Dr Baskaranathan or to Dr Rosenthal that she was experiencing any side effects. There was no evidence that she mentioned any of those matters to Dr Shane Wignell, who on 15 September 1997 certified her fit to return to full-time hours. Dr Wignell was not called. There was no evidence that after 15 September the [respondent] attended any medical practitioner about her condition until 29 October when she saw Dr Edwardes. She gave evidence that she had earlier told Dr Wong and Dr Oehlers but neither of them apparently held any concern. There was no evidence that she told any of the medical practitioners of any concern or worries about her employment relations.
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- There were a number of other factors which throughout the relevant months which in one way or another, contributed to her anxiety and stress levels. After the February appraisal she felt that she was being put on probation. She said that came as a shock to her. A possible inability to have children, cervical cancer and the cervical laser treatment were obviously matters of concern. In the [respondent's] words in her response following her counselling session on 13 August, this '…has given me cause to worry, be concerned, generally feel depressed…'. Being on 'poor performance', being monitored weekly and having to respond to the numerous memos raising errors, discrepancies and non-compliance with procedures gave rise to the [respondent] feeling that she was being harassed and the subject of a vendetta. Not being able to get along with her supervisor and other relevant people at the branch was something which she later mentioned to Dr Douglas. That conflict would serve to exacerbate the situation. The [respondent] was, in her words, a career person and she aspired to advancement within the bank. When she returned to Floreat it was not as a CSO but as a teller which was a lower graded role. Concern for her career in the bank was another element contributing to the stressful situation. The merger of the two banks may have exposed the [respondent] as being a person whose employment in the merged entity might have been at risk. These events were threatening to her ambitions in her chosen career and were no doubt worrying to her. It follows that as things were going from bad to worse for the [respondent] the level of anxiety grew and so did the level of stress. Some of these factors may also have contributed to the sleep disturbance, teeth grinding and consequent TMJ pain.
Furthermore there was no direct medical evidence that memory loss and lack of concentration are in fact side effects which might be experienced by some persons prescribed Prothiaden. The [respondent] ascribed these things to the effects of Prothiaden after she said she had obtained a print-out from a chemist. It was all very convenient for the [respondent] to put all of her problems at work down to this single factor. That ignores the reality of the situation. Furthermore it does not explain her 'poor performance' at work which preceded her taking the medication."
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57 Counsel for the appellant accepted all of the findings made by the learned Judge, including the findings of the extent to which the respondent was injured in the accident. In particular, it was accepted that the respondent had fully recovered by 23 October 1997, some seven months after the accident on 21 March 1997. It was also accepted that anything of which the respondent complained after 23 October 1997 was brought about by stress suffered as a result of what the respondent perceived to be a vendetta against her by some of her fellow employees.
58 The respondent was certified fit to return to work on full duties by Dr Rosenthal on 5 August 1997, Dr Baskaranathan on 5 September 1997 and by her own doctor, Dr Wignell, on 15 September 1997.
59 Counsel for the appellant submitted that it was only after counselling by her fellow employees and superiors that took place in October 1997 that the apparent symptoms which Dr Douglas identified in his report dated 9 November 1997 were displayed. These were described by Dr Douglas, who was a clinical psychologist, as follows:
"On presentation during interview, Karen was quite distressed almost throughout the entire time that I spent with her, she described persistent difficulty with her sleeping pattern, regular headaches, a diminished appetite and level of energy, and a dysphoric and tearful mood. She also describes a range of symptoms consistent with anxiety. She describes episodes of dizziness, tinnitus, tightness in her throat and chest, episodes of palpitations and stomach upset. She also has difficulty with her concentration and is often tremulous."
60 Counsel for the appellant accepted the findings made by the learned trial Judge at pars 66 - 68 of his judgment as follows:
"I do accept however that her accident related injuries may have caused her some difficulty and inconvenience in her daily work when she returned to the bank. That was to a large extent ameliorated however given that:
(i) her injuries are described by the doctors as being only of 'mild severity';
(ii) she had been off work for 4 weeks immediately following the accident;
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- (iii) when she did return to work it was on a graduated basis doing light and varied duties. Initially it was 2 hours per day, 3 days per week and thereafter steadily increased. It was not until the end of July at Northlands that she was working 6 hours per day. She was not required to assist in the moving process when the two Floreat branches amalgamated;
(iv) during this rehabilitative period she continued to have physiotherapy and hydrotherapy;
(v) she was certified fit for work by Dr Rosenthal on 6 August 1997, by Dr Baskaranathan on 5 September 1997 and by Dr Shane Wignell on 15 September 1997. She returned to work full-time on that latter date.
The symptoms which the [respondent] displayed were consistent with the sort of symptoms which might have been expected in the stressful situation which she found herself in the work environment disregarding the fact of the motor accident. The situation was conducive to the plaintiff becoming greatly depressed as Dr Douglas found that she was.
In all the circumstances I am not persuaded to the requisite degree that the [respondent's] employment related problems can be attributed to the accident or to her claimed side effects of Prothiaden. In the end it was but a straw at which the [respondent] clutched so as to provide an excuse for her continuing unsatisfactory work performance. Thus I find that the motor vehicle accident and treatment therefor were not the cause of her termination and thus she cannot lay claim for damages in respect of the depressive illness and claimed loss of earnings consequent upon her work place circumstances. Her absence from work after 29 October 1997 was not a consequence of her motor vehicle accident but was consequent upon the stress of her work place situation and subsequent termination."
61 It was also accepted by counsel for the appellant that the learned Judge had made correct findings regarding the respondent's prognosis as follows:
"I find that with conservative treatment the [respondent's] accident related injuries have resolved. Such residual disability
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- as there may be of the cervical spine is very slight. It is the consensus of medical opinion that her symptoms will fully resolve. She was certified fit to return to full-time work approximately 6 months after the accident. Any restriction of arm raising or heavy lifting will resolve and the [respondent's] general musculature will benefit with an active physical rehabilitation programme. The symptoms associated with her parafunctional jaw activity have settled with the use of the occlusal splint. Other than for reviews no further treatment is necessary.
It is my finding that from 15 September 1997 when Dr Wignell certified her as fit to return to full-time work the [respondent] was able to carry out her pre-accident duties with her employer. Such matters of which she complained after 23 October 1997 were not the consequence of her accident."
- This included the stress the respondent claimed to have suffered.
62 It was from this position that the appellant challenged the award of general damages, future medical expenses and past economic loss.
Ground 1: General Damages
63 As to the general damages, it was submitted on behalf of the appellant that, given that the accident occurred on 21 March 1997, some seven months prior to 23 October 1997, the general damages were only required to compensate the respondent for loss of amenities over a total period of seven months.
64 At the relevant time, namely, as at 22 February 2000, the date of assessment, the maximum amount payable under s 3C of the Motor Vehicle (Third Party Insurance) Act 1943 ("the Act") for non-pecuniary loss was $219,000. His Honour's assessment of this case as being 12.5 per cent of the worst case resulted in an amount payable of $16,875 on account of general damages. It was submitted on behalf of the appellant that this was plainly excessive. In support of that submission it was contended that the purpose of the 1993 amendments was to reduce the cost of small claims by capping liability by fixing an amount of $200,000 for a "most extreme case" and introducing a threshold of $10,000. As at the time the assessment was made, the threshold was $10,500.
65 In this context a question was raised whether, in the event of this Court holding that the learned Judge's assessment was in error, the
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- threshold at the time of assessment by the Full Court should be the current threshold as at 1 July 2000. There is nothing in the legislation to indicate that, where damages are to be assessed on appeal, they should be assessed on the basis of the threshold at the time of the appeal, as distinct from the time of the assessment at the trial. In my opinion, the task of this Court on appeal is to determine whether the assessment of damages was correct (in the sense that it was within the range of a sound discretionary judgment) at the time it was made. If it was not, this Court must itself assess the damages at that same time.
66 The Western Australian legislation, s 3C of the Act, is similar to s 79 of the Motor Accidents Act 1988 (NSW). In Southgate v Waterford (1990) 21 NSWLR 427 at 440, the New South Wales Court of Appeal said:
"There are a number of ways by which trial judges could approach the task of apportionment required by s 79(2) and s 79(3). It is inappropriate in this case for this Court to mandate any particular way of arriving at the 'proportion' required by s 79(2). But clearly, because the task in hand is that of awarding damages for 'non-economic loss' it is appropriate for the trial judge to consider and make findings on those elements in the evidence which are relevant to such loss. This will require the judge to consider and make findings on the evidence relevant to those heads of damage formerly considered in the award of general damages. Then 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. The use of the indefinite article 'a' has already been noted. Opinions of what constitute 'a most extreme case' will doubtless vary. But clearly quadriplegia would fall into that class. The amount to be awarded must then be apportioned somewhere between nil and $180,000; but 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'."
67 This approach was adopted by the Full Court of this Court in Wylde v 'Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997 in the application of s 3C of the Western Australian Act.
68 In Wylde the plaintiff was a 35 year old roof plumber who suffered a very severe left leg injury which the trial Judge had found "affected every aspect of his life". He was left with permanent disabilities including
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- extensive scarring, deformity and a limp. It was contended that an award of $25,000 general damages did not fall within the bounds of a sound discretionary judgment. At the time Wylde was decided, the amounts A, B and C referred to in s 3C were $207,000, $10,000 and $31,000 respectively. As appears from the judgment of Franklyn J at 10, Mr Wylde was left with a considerable disability as a result of a pronounced limp; ankle joint and subtaler joint stiffness on the left side; inability to stand for more than a hour without severe pain; and pain in the shin bone and also knee bone. As appears from the judgment of Franklyn J at 11, the learned trial Judge found that:
"The plaintiff's injury has affected every aspect of his life. He has been active in social cricket, veterans' football, fishing, bushwalking, marroning and social tennis. This injury leaves him unable any longer to do any of those sporting or recreational activity [sic]. He has umpired some social cricket matches and hopes to be able to play in a modified way. His injury has also stopped him from finishing the construction he intended on his property and building a shed. The injury has also changed his family life; his wife has had to return to work and he has had to undertake household duties and child care including helping out in pre-school. His life has been turned upside down. Not surprisingly he has found that difficult to handle at times and that has led to rows and some frustration. Nor is it surprising that he misses his work as a roof plumber and suffers loss in the amenity of his life from not ever being able to go back to that employment."
"Her Honour's findings on this issue make no reference to the quite significant disfigurement and scarring resulting from the injuries sustained and consequent surgical procedures. Nor do they refer to the following relevant matters: The appellant's uncontested evidence that on waking each morning, his leg is very stiff and very sore around the ankle, that he hobbles a lot early in the morning and has general soreness up the back of his leg, that his left leg feels weaker than his right and he tends to use the right leg to compensate. His evidence, supported by medical evidence, is that the leg aches in the afternoon if he has been 'up and about' for a long period. If on his leg too long his knee gets sore. He has numbness on the medial side of the
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- ankle and distal to the large soft tissue scar. He was in hospital three weeks and underwent physiotherapy until late 1995. The medical evidence is that he cannot walk across uneven ground without increased pain. None of that evidence was contested. Subject to those additions, her Honour's description of the appellant's injuries and their residual effects is a fair summary of the evidence clearly accepted by her."
70 Franklyn J concluded that the injuries suffered by the appellant in that case were such as would fall within the lowest 25 per cent of "a most extreme case" but toward the upper end of that 25 per cent. The sum awarded represented 20 per cent of the then current maximum.
71 In Hendrie v Rusli [2000] WASCA 249 the Full Court refused to interfere with a 20 per cent assessment by the trial Judge in the District Court which included an award of general damages of $42,400 and an assessment of 20 per cent of a most extreme case. In that case the 78 year old plaintiff had suffered a number of potentially serious injuries, namely, a closed head injury, fractured ribs on the right side, a bilateral haemothorax, a compound fracture of the right leg, bruising of the spleen and kidney, a fracture of a spinal process, a tear of her right shoulder muscles, various soft tissue injuries and anxiety. At the time of trial, her principal problem was limping and pain in the right ankle. There was scarring of the ankle, a decreased range of movement in the joint and she was still finding walking a problem. There was evidence of difficulty in effectively re-uniting the joint where it had fractured and an operation was performed to remedy this which was successful. It was suggested, however, that an arthrodesis of the ankle might be necessary but this was resisted by the appellant. She remained afflicted by significant residual disabilities in the right shoulder and right ankle. By the time of trial, however, the appellant was making arrangements to undergo surgery to her ankle which, on the evidence, should have achieved significant improvement, although it was accepted that there would continue to be residual disability. At the time of the accident in that case the plaintiff was 78 years of age. At the time of the hearing on 23 April 1999 she was 80 years of age and had a life expectancy of a further 8.6 years. Murray J, with whom the other members of the court agreed, were unable to conclude that an award of $42,400 under this head was so inadequate as to require the intervention of the Full Court. Although it was accepted that the assessment of 20 per cent was modest, it seemed that it remained within "an acceptable range of judgment" (see par 20, p9).
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72 It was against this background that counsel for the appellant submitted, first, that the award of 12.5 per cent of a most extreme case "for what amounted to some seven months' discomfort" was excessive. In answer to the appellant, it was submitted on behalf of the respondent that ground 1 of the grounds of appeal ignored the totality of the injuries and symptoms suffered by the respondent as found by the learned trial Judge. Secondly, it was submitted for the appellant that, given the variety of the symptoms, some of which had not resolved at trial, the award was within an appropriate range for general damages. Thirdly, it was submitted that the trial Judge correctly addressed the legal issues relating to an assessment of general damages.
73 Counsel for the respondent pointed out that the appellant's grounds of appeal characterised the respondent's injury as a whiplash injury in terms of "a soft tissue injury to the cervical spine" and a non-bone injury to the lumbar spine. In addition, of course, it was found by the learned Judge that the respondent experienced radiated pain across the shoulders and around both shoulder blades. Although the temporomandibular joints did not suffer direct injury in the accident, it was found that soft tissue myofascial pain was consequent upon a disturbed sleep pattern resulting from the cervical spine pain. Further, the respondent experienced frequent headaches associated with the soreness of the neck and low back. It was submitted that the award was a proportionate award, not just related to a percentage of permanent disability, but also related to the overall loss of amenity suffered by any one person. It was submitted that in this case there had been a significant loss of enjoyment of life. It was also submitted that the trial Judge had looked at all the relevant factors and that the award was not so far outside the range that it should be interfered with.
74 As to the submission that the injuries had resolved within a short space of time, the finding made by the learned trial Judge was:
"I find that with conservative treatment the [respondent's] accident-related injuries have resolved. Such residual disability as there may be of the cervical spine is slight."
75 It was not clear whether "resolved" in that context meant that the symptoms had gone away, or meant that they had settled to a defined and consistent level. In my opinion, it was more likely to be the latter rather than the former. It was the consensus of medical opinion that the symptoms would fully resolve in time. His Honour concluded that any restriction of arm-raising or heavy lifting would resolve and that the
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- respondent's general musculature would benefit from an active physical rehabilitation programme. It was also said that the symptoms associated with her parafunctional jaw activity had settled. However, shortly after she was certified as fit to go back to her pre-accident work on 15 September 1997, there was a diagnosis of post-traumatic stress on 29 October 1997.
76 In November 1997 she went to see Dr Hamzah who did facet joint injections in the cervical spine by way of treatment for her neck injuries. She also obtained an occlusal splint for her jaw.
77 When she was certified fit to return to part-time work in January 1998, her employment was terminated. In February 1998 she had radiofrequency rhizolysis from Dr Hamzah for the facet joints in the neck. In February 1998, when reviewed by Dr Rosenthal for the appellant, he concluded that there were:
"… ongoing symptoms of myalgic noted chronic stress situation largely due to employment and psychosocial factors. Nevertheless the motor vehicle accident produced some stress as evidenced by sleep disturbance and parafunctional jaw activity".
78 This was 11 months after the date of the accident. While the learned Judge made no express finding on the issue of credibility, it may be accepted that, if he did not believe her evidence, his Honour would not have awarded general damages at the level he did.
79 To that can be added the prescription of the occlusal splint in December 1997 which assisted her with sleeping, but she was still using it in August 1999 and beyond. In a report by Dr Delcanho dated 19 August 1999 he said:
"Future treatment from me would involve annual checks of the occlusal splint and any necessary adjustments. In time (2-5 years) the occlusal appliance may require replacement and so provision should be made for that possibility. The costs of the review visits will be in the order of $150 each and a new occlusal splint would cost about $600."
80 The occlusal splint was required because the motor vehicle accident produced stress resulting in sleep disturbance and parafunctional jaw activity. It was for this reason that Dr Baskaranathan prescribed Prothiaden because of her sleep problems. It was notable that following
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- the commencement of that treatment her performance at work was acceptable. On this basis, it was submitted on behalf of the respondent that the award of general damages was appropriate. I accept this submission. I am not satisfied that it has been demonstrated that there was an error in the exercise of discretion in relation to the award of general damages, so that they were excessive.
Ground 2: Past Economic Loss
81 It was submitted on behalf of the appellant that, immediately after the accident, the respondent took sick leave and was paid for a period of 10 weeks by Westpac. As at the end of October 1997 she was again unfit for work, but his Honour found that as from 23 October 1997 her problems were not related to the motor vehicle accident. The learned Judge reinstated in full the sick leave which the respondent had received, without regard to any income she had received from her employer in the period during which she was off from the end of October, until her return to employment.
82 It was submitted that while his Honour's reasoning was correct and the respondent was entitled to be reimbursed sick leave, the reimbursement should only be to the extent to which it would have been utilised, if sick leave were to be taken during an absence which was not related to the motor vehicle accident. This was adverted at the trial and in the documentary evidence before his Honour dealing with the respondent's absence from work in the period November 1997 to January 1998 inclusive. Further, it was submitted on behalf of the appellant that it was agreed and admitted at all times that the respondent had in fact received the sum of $2,350 from the appellant by way of payment for economic losses during the period November 1997 to January 1998 and that this would affect the calculation of interest.
83 It was also submitted that the learned Judge was in error in reinstating the sick leave in full without regard to any income the respondent had received from her employer during the period she was off work from the end of October 1997 until her return to employment. It was accepted that it was correct in principle to reinstate the sick leave, but only to the extent that she had actually lost salary.
84 Reference was made to a schedule of salary payments for the period March to December 1997 which was contained in the respondent's personnel file which was in evidence at the trial. Counsel for the
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- appellant at the trial drew attention to the document entitled "Salary Payments for the Period March to December 1997" which said:
"The period 5 November 1997 to 31 December 1997 which is a total of 40 days should all have been unpaid leave. However, you can see from the pay records that only 22 days were actually unpaid with the remainder being paid as normal earnings."
Ground 3: Future Medical Expenses
86 It was submitted that the award of the sum of $3,000 by way of future medical expenses for an occlusal splint was inconsistent with his Honour's finding that the effects of the respondent's injury had ceased by 23 October 1997. In this respect, the reports of Dr Robert Delcanho were agreed to be tendered in evidence subject to a proviso at p 129 of the transcript. For some reason, the discussion between counsel and the learned trial Judge regarding the admission of Dr Delcanho's reports by consent was regarded as part of an address to the Judge and not included in the appeal book. By consent, for the purposes of the appeal, the following supplementary note from Dr Delcanho in the form of a fax was added to his medical reports, namely:
"Further to our discussion of 2 September I confirm my view that should this lady's neck and shoulder pain resolve with passage of time, I would expect the jaw to do likewise."
87 The purpose of the tender was to confirm that the injuries to the neck, shoulder and jaw were inter-related. In other words, the jaw pain was co-extensive with the shoulder and neck pain. It was submitted that, given that his Honour found that these were not accident-related, it follows that the jaw pain was a symptom of stress. Reliance was placed upon the evidence of Dr Rosenthal that this sort of problem can occur
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- without trauma. He also said that "parafunctional jaw activity is very, very common in young women, you know, irrespective of trauma".
88 It was submitted on behalf of the respondent that the trial Judge was entitled to make an assessment on a global basis for future medical expenses "doing the best that he can" on the available evidence: Malec v J C Hutton Pty Ltd (1990) 169 CLR 638.
89 The learned Judge found that the motor vehicle accident caused stress as evidenced by sleep disturbance and parafunctional jaw activity. Although the respondent was certified fit to return to full time work approximately six months after the accident, she was still suffering from post-traumatic stress, so much so that in February 1998 Dr Rosenthal, who was retained by the appellant, in a report dated 23 February 1998, expressed the opinion that the motor vehicle accident had produced, "some stress as evidenced by her sleep disturbance and parafunctional jaw activity". He also noted that, since he had last seen the respondent, she had seen Dr Delcanho "who provided her with an occlusal splint" which had "significantly relieved her jaw pain". This, of course, was some 11 months after the accident. In my opinion, on this evidence, the learned trial Judge was entitled to make the award which he did for future medical expenses.
90 It follows that, by consent, the appeal should be allowed in respect of ground 2 by consent to the extent that the award for past economic loss up to 17 September 1997 should be reduced to from $4486.68 to $3,076.68. Subject to that, the other grounds of appeal have not been made out and the appeal should otherwise be dismissed.
The Cross-appeal
91 I turn now to the cross-appeal. It is convenient to consider grounds 1, 2 and 3 of the cross-appeal together.
Grounds 1, 2 and 3 of the Cross-appeal
92 Ground 1 of the cross-appeal was as follows:
"The learned trial Judge's finding that the Respondent (Plaintiff) was fit for full time employment in the capacity in which she had been employed prior to her accident and his consequent decision not to award her any past economic loss beyond 15 September 1997 and His Honour's decision not to award the
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- Respondent (Plaintiff) any loss of earning capacity are wrong in law in that His Honour has determined those issues by applying an incorrect test of causation by asking whether the injuries, symptoms and treatment consequent on the motor vehicle accident were 'the cause' of the loss when the proper test is whether they were as a matter of common sense 'a cause' of the loss."
93 Ground 2 of the cross-appeal contends that his Honour was wrong in failing to award the respondent damages for past economic loss for the period 15 September 1997 to the date of trial, namely, 1 September 1999 and should have found that the injuries and associated treatment were a cause of the respondent's termination from her employment in that:
"(a) between the date of the accident, 21 March 1997, and 4 August 1997 the Respondent (Plaintiff) had undergone a graduated return to work during which period she received either effective or acceptable work appraisals;
(b) at or about the latter date had been prescribed Prothiaden;
(c) thereafter up until 23 October 1997 made numerous unacceptable errors in the course of her employment as a bank teller resulting in her receiving unacceptable performance ratings with a consequent recommendation by her superiors for her dismissal;
(d) thereafter developed a significant stress disorder certified on 29 October 1997;
(e) was dismissed from her employment with the bank on 20 January 1998 having been certified as fit for part time work from that date."
94 Ground 3 contended that further, and in any event, the failure to award any sum at all for past economic loss beyond 15 September 1997 and, in particular, for the period subsequent to the respondent's dismissal from the bank on 20 January 1998 was wrong in that:
(a) it ignored and failed to compensate the respondent for her inability to compete in the labour market as she had formerly been able to do, given her ongoing inability to lift or raise her arms; and
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- (b) the finding further ignored that the certification for fitness was for her pre-accident duties only and not for all areas of her employment.
95 It is immediately apparent that there is a significant degree of overlap between these three grounds. Ground 1 contends that the learned trial Judge's decision not to award damages for past economic loss in respect of the period after 15 September 1997 was wrong in law because the wrong test of causation was applied. Ground 1 of the cross-appeal is concerned with past economic loss generally in the period beyond 15 September 1997 in the sense of loss of earnings between that date and the date of trial. However, as has been seen in the context of ground 2 of the appeal, there was an agreement by counsel that the special damages for loss of earnings should be adjusted by making an order reinstating the respondent's sick leave, to the extent that she did not receive it between 23 October 1997 and 20 January 1998, when her employment was terminated. In my opinion, the effect of that agreement was to satisfy the claim for loss of earnings up to and including 20 January 1998. It follows that, so far as past loss of earnings in the relevant period are concerned, grounds 1, 2 and 3 of the cross-appeal are concerned only with the issues of past loss of earnings in the period 21 January 1998 to the date of the trial, namely, 1 September 1999.
96 It was submitted on behalf of the respondent that the learned trial Judge determined the issue of causation by finding that the motor vehicle accident was not the cause of the respondent's loss of employment with the bank, rather than by determining whether it was as a matter of common sense a contributing cause.
97 In cases such as this it is clearly established that causation is to be approached as a question of fact to be answered "by applying common sense to the facts of [the] particular case": March v Stramare (E & M H) Pty Ltd (1991) 171 CLR 506. As Gaudron J pointed out in Chappel v Hart (1998) 195 CLR 232 at 238, the application of common sense to the question of fact applies:
"… both for the question whether a particular act or omission caused any damage at all (see March v Stramare (E & M H) (1991) 171 CLR 506; Bennett v Minister of Community Welfare (1992) 176 CLR 408) and for the question whether some particular damage resulted from the act or omission in question (see Medlin v State Government Insurance Commission (1995) 182 CLR 1)."
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98 In Medlin v State Government Insurance Commission (1995 182 CLR 1 at 6 Deane, Dawson, Toohey and Gaudron JJ held that in the present context the question whether the requisite causal connection exists between a particular breach of duty and particular loss or damage is essentially one of fact to be resolved, on the probabilities, as a matter of common sense and experience. This remains the case even where there is an intervention of some act or decision of the plaintiff or a third party which constitutes a more immediate cause of the damage. The plaintiff is entitled to recover if it can be found that the necessary causal connection would still exist if the intervening act or event be disregarded.
99 It was submitted on behalf of the respondent that a proper examination of the evidence disclosed that, while it may be said that the respondent was encountering difficulties with aspects of her employment prior to the accident, the accident and the ongoing symptoms resulting from it compounded her situation by causing her to have time off work and then return to work on a restricted and part time basis only. Further, it was submitted that, while there were some deficiencies in the respondent's performance pre-accident, the nature and extent of them was significantly greater post-accident and that, as a matter of common sense, the only logical inference was that the accident-related symptoms contributed significantly to that problem. The learned Judge accepted that the mild whiplash which the respondent sustained "may have caused her some difficulty and inconvenience in her daily work when she returned to the bank". However, his Honour went on to make the finding that she was certified fit for work in August and September 1997. Consequently, the learned Judge made the findings to which I have already referred, being the findings now challenged.
100 As has already been observed, the learned Judge found that with conservative treatment the respondent's accident-related injuries had resolved by 23 October 1997 and the matters of which she complained after that date were not the consequence of the accident. In other words, they were not caused by the accident. What was not considered was whether the accident was a contributing cause of any of the difficulties or problems the respondent encountered after September-October 1997. A number of matters were referred to in support of his Honour's conclusions. First, as to the suggestion that Prothiaden was deemed necessary because of her accident-caused symptoms, and caused other problems, the learned Judge noted that the respondent said she had told Dr Oehlers about this and the symptoms, but no reference was made to this in his reports and Dr Oehlers was not called. Secondly, there was no evidence that she mentioned any of her relevant problems to Dr Wignell who certified her
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- fit to return to full time work on 15 September 1997. In that report, however, Dr Wignell said that she should avoid heavy lifting and tasks that involved lifting above shoulder height. His Honour also noted that there was no mention of the side effects of Prothiaden to Dr Baskaranathan or Dr Rosenthal. The respondent did have an explanation of possible side effects from Dr Baskaranathan, but she did not give evidence of any complaints to him about them. Thirdly, there were other significant factors which contributed to her anxiety and stress and the respondent was taking the smallest possible dose when she was taking Prothiaden.
101 His Honour made no reference to the fact that the respondent had complained of side effects of Prothiaden to her General Practitioner, Dr Edwardes on 5 November 1997, which he recorded in a manuscript note of that date. In a report dated 9 December 1997 Dr Edwardes said:
"I refer to your letter dated 5 November 1997. To answer your questions:
1., 2. and 3.
Ms Cornwall complained of a sore neck, sore shoulders, occipital headache, sore jaw and pain in both arms, tiredness, nausea, unhappiness, depression and was feeling very stressful.
In August or September 1997, she was put on Prothiaden tablets which helped some of her symptoms, but the side effects were intolerable: these being impaired alertness, dry mouth, dizziness, forgetfulness, skin rash and problems with her bladder function and weight. These side effects affected her performance at work, and she became extremely anxious and stressful. She was worried about losing her job.
She stopped taking Prothiaden about a week before she consulted me. Hence her original symptoms returned as they were prior to the taking Prothiaden.
I saw her on 29th October 1997. She was anxious, shaky, tearful and unable to stop crying. She was very tender over the greater occipital nerves on both sides, over her lower cervical spine and over her shoulders. Ms Cornwall was unable to go to work.
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- I referred her to Pain Specialist Dr H Hamzah and to Clinical Psychologist Dr B Douglas. I asked her to try the anti-depressant Prozac.
- 4. I saw her again on the following dates:
28 October 1997 12 November 1997
29 October 1997 16 November 1997
5 November 1997 5 December 1997
She was taking the pain killer Paracetamol and/or Panadeine forte but unfortunately she was unable to tolerate the anti-depressant Prozac.
I think she may benefit from gentle massaging but unfortunately the SGIC will no longer accept responsibility for payment of same. As her symptoms persist, Ms Cornwall will go ahead with neck injections as suggested by Dr Hamzah which will take place on 15th December 1997.
5. At present, Ms Cornwall is unfit for work."
102 The respondent had also complained to the pain management consultant Dr Hamzah, who noted in his report dated 11 November 1997 that:
"Initially she was on Prothiaden, 25mg nocte, to try and correct her sleeping habits but unfortunately the side effects were not acceptable to her and she stopped taking it. Since then she has had about six Panadol daily and this controls the pain reasonably well."
103 It was also found by the learned Judge that there were other significant factors which contributed to her performance at work and what happened after she started taking Prothiaden did not explain her "poor performance" at work, which preceded her taking the medication. The learned trial Judge also took into account the letter by the respondent to her Union representative dated 15 September 1997 to which reference has already been made. Finally, the learned Judge took into account that the respondent's mistakes even prior to the accident, when she was on "poor performance", were the same kinds of mistakes as she made following her return to the bank.
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104 Counsel for the respondent submitted that the learned Judge was in error in relying on the evidence that the respondent was fit for work, in the sense that she had recovered from the effects of the accident by 15 September 1997. As at 6 August 1997 Dr Rosenthal reported for the appellant that the respondent was currently working restricted hours of six hours per day. She complained of a painful stiff neck, a burning sensation around the shoulders and clavicles. There had been early onset of right cervicobrachial pain and difficulty raising her right arm above her shoulder. This improved after taking Voltaren and Codeine. Her current medication was Panamax and Zostrix Cream, but she had a prescription for Prothiaden, but had not commenced taking it. She had been treated with physiotherapy, massage and hydrotherapy. Dr Rosenthal found her symptomatic but not incapacitated. In his opinion her case was not ready for settlement and she should be reviewed in six months. He concluded that she was fit to work normal hours as a bank CSO as distinct from a bank teller. In the meantime she had been fitted with the occlusal splint by Dr Delcanho, treated with facet joint blocks and rhizotomies by Dr Hamzah, which had improved cervical mobility, but not her neck pain. Her symptoms were described as myalgic. She was again regarded by Dr Rosenthal as fit to work as a bank CSO, as distinct from a bank teller.
105 From 29 October 1997 there was a diagnosis of post-trauma stress by the respondent's General Practitioner Dr Edwardes in his report dated 12 November 1997. In my opinion, it is not possible to exclude the accident as a contributing factor to this stress to some degree, although the precise assessment may be difficult. In a report dated 24 November 1997 Dr Douglas, a clinical psychologist, considered that the respondent was unfit for work because of her depressive symptoms. In a further report dated 9 December 1997 Dr Douglas confirmed that her depressive illness was compounded by the medication she was taking at that time. This appears to me to be a reference to Prothiaden.
106 In November 1997 the respondent was treated with facet joint injections for her cervical spine. In my opinion, the evidence does not permit the exclusion of the accident as a relevant cause, if not the cause, of the condition which required this treatment. It was in December 1997 that the need for the occlusal splint was recognised. This need was clearly caused by the accident. In my opinion, all three of these matters were causally related to the accident.
107 In January 1998 the respondent was certified fit for a return to part time work. When she did return on 20 January her employment was terminated. In February 1998, following a review by Dr Rosenthal on
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- behalf of the appellant, he ascribed the "chronic stress" "largely due to employment and psychological factors". He also says, however:
"Nevertheless the motor vehicle accident produced some stress as evidenced by sleep disturbance and parafunctional jaw activity."
109 It was also submitted on behalf of the respondent that the learned trial Judge failed to appreciate that the certifications for fitness in respect of the respondent in August-September 1997 related only to the respondent's pre-accident duties. When the respondent's employment with the bank was terminated on 20 January 1998, it was submitted that she was less able to compete in the labour market than had previously been the case. Consequently, she was entitled to an award of damages for loss of earning capacity in respect of the period between the loss of her employment on 20 January 1998 and when she commenced work as a console operator at a service station on 18 May 1998 and was employed part-time for 20-30 hours per week.
110 I note that the relevant period was 16 weeks and three days, a total of 83 days. At the time of the accident, as calculated by the learned trial Judge, the respondent was earning $391.85 net per week or $78.37 per day. The loss claimed, calculated on this basis, was $6,504.71 on which the respondent would be entitled to interest at 6 per cent per annum from 18 May 1998 to the date of the judgment in the District Court, namely, 22 February 2000 in the sum of $686.11, making a total of $7,190.82.
111 It was submitted for the appellant that the respondent's dismissal was a novus actus interveniens in that she was dismissed for incompetence and not for any reason related to her injury. She was paid four weeks' pay in lieu of notice and three months' payments from her employer which took her up to 17 May 1998. In my opinion, it cannot be said that the respondent's work performance was not adversely affected by the accident
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- and contributed to her dismissal with the result that as a matter of common sense there was a causal relationship between the accident and the dismissal.
112 For the reasons I have indicated I accept the submissions by counsel for the respondent that, as a matter of common sense, the relevant symptoms were caused, or contributed to a significant degree, by the accident. It does not follow, however, that the respondent is entitled to recover for loss of earnings in the period from 21 January to 17 May 1998. The appellant in fact paid her in respect of that period. It follows that the respondent fails on this point.
113 The next question is whether the respondent is entitled to an award of damages in respect of loss of earning capacity between 18 May 1998 and the date of the trial. In this respect I note that in a report dated 2 March 1999 Dr Douglas said that when he last saw the respondent on 14 November 1998 her work capacity had returned to normal psychologically, although she complained of continuing to be troubled by a moderate degree of neck shoulder and back pain. Following a review on 9 September 1998 Dr Rosenthal noted that the respondent still complained of myalgic symptoms in her neck, shoulder and back. On examination the range of cervical movement was full with some end range myalgic discomfort. There was persisting scalp and masticatory muscle tenderness and the myalgic nature of her symptoms was confirmed with her complaint of discomfort on full arm elevation. She said that she was using a cervical pillow at night, but it did not help. Her sleep pattern remained dysfunctional for which she took Temazapam, although he believed that Amitriptyline or Dothiepin would be more appropriate. Dr Rosenthal concluded as follows:
"… I do not consider her motor vehicle injury has reasonably prevented her from discharging the duties of a bank customer services officer either now or on the previous occasions that I have seen her clinically. Ms Cornwall told me that these duties involve counter service, writing, data entry, telephone work, filing and handling general transactions.
There has clearly been a stress situation arising from her employment performance and I would suggest if you require further information on this issue then you should obtain a report from Challenge Bank.
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- With regard to my reference to psychosocial factors, I do think that this young lady has an inappropriate level of illness and disability conviction. Her injury has not been serious, her myalgic symptoms are completely reversible and in my opinion her management has been conspicuously devoid of an appropriate active physical rehabilitation programme. Even today almost eighteen months post accident there is a reluctance of her part to elevate her arms above shoulder level and unfortunately this type of avoidance behaviour only serves to prolong symptoms and foster chronicity. This type of fibromyalgic symptomatology is frequently associated with and perpetuated by stress and it often occurs without there being any antecedent soft tissue trauma.
I consider that her condition has stabilised sufficiently for the matter to proceed to settlement and I think that she will benefit from a determination of medicolegal issues by removing a focus of blame and getting on with her life."
114 The respondent was reviewed by Dr Edwardes, who had previously reported on 9 February 1998, in a further report dated 2 March 1999, in which he said that the respondent's symptoms were very much the same. She was taking painkillers and using anti-inflammatory medication. Her part-time employment was described. Dr Edwardes said that:
"4. Miss Cornwall's work capacity from the date of the accident to the date hereof: I refer to three previous reports dated 13.05.97, 09.12.97 and 09.02.98. Miss Cornwall lost her job in January 1998 which aggravated her depression. She started as a casual relief console operator in May 1998.
5. Her future work capacity has been compromised, hopefully, for only another year or two, although, her symptoms may not settle completely.
6. She should avoid prolonged standing, walking or sitting and she should avoid heavy physical work. She is managing with her current work and she is studying part time and has done several courses. Her career path is in the administration field.
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- 7. With regard to the extent of Miss Cornwall's restriction in competing in the open workforce, I believe this has been answered.
8. Although she is still undergoing intermittent counselling with Clinical Psychologist, Dr B Douglas, is keen to consult Dr R Delcanho for review of her jaw problem, is still working on an exercise programme and losing weight, I believe that finalisation of her claim is justified.
9. Nearly two years have passed since the accident and although permanent disability is not likely, at present, Miss Cornwall has sustained a residual disability as a result of motor vehicle accident injuries. I believe she has a percentage disability of 10 per cent."
115 In his final report dated 27 August 1999 Dr Edwardes said:
"Since my last report dated 02.03.99, I reviewed Karen on 25.08.99.
Karen works about 20 hours per week as a console operator (8 hours per day, 2 or 3 days per week) and she is studying Bachelor of Arts in Justice studies 3 days per week (about 9 hours per week) but she gets very sore after prolonged reading, standing or sitting.
She manages with her house chores slowly and with discomfort but she is still unable to do gardening.
Although there have been improvements of her symptoms, she still complains of headaches, neck and shoulder burning pain, upper and lower back pain, for which she uses a heat pack and Feldene gel for rubbing. She has body massage once per month and physiotherapy for her neck on and off.
She has stopped consultations with the Clinical Psychologist and her anxiety over driving and having another accident has improved.
Karen has full range of neck, shoulder and back movements but she has tenderness over her neck, lumbar spine, shoulders and upper arms.
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- Future treatment is to keep fit and to continue with her exercise, preferably under supervision. Although, usually this kind of injury will improve further. This accident had reduced her quality of life and has restricted her work capacity. As there is nothing else to offer, Miss Cornwall's claim can be finalised."
116 In a report dated 17 November 1998 Adjunct Professor Andrew Harper of Curtin University reported that the respondent was capable of full-time clerical and sedentary work, although she was incapacitated for manual work involving lifting or bending. The prognosis was for complete recovery with no permanent disability. The injury would have no impact on the duration of her working career. Professor Harper said, however, that:
" Restrictions are to avoid prolonged static postures and to avoid prolonged standing and prolonged sitting. She requires to take standard breaks. She should avoid heavy lifting and bending and carrying. There is no indication to consider changing her current occupation or career path in administration."
117 Professor Harper also expressed the opinion that the respondent's employability had been compromised as a result of her injury, but her symptoms had stabilised sufficiently to finalise her claim.
118 In a further report dated 16 August 1999 Professor Harper noted that the respondent still complained of pain from the sources previously described, although there had been improvements, but there were still frontal headaches. In this report he concluded that she was capable of full time work with some restrictions, including as a console operator. Her work capacity in the future was not compromised as, although her restrictions currently reduced her employability to some extent, it was anticipated that her residual disability should resolve fully. It was recommended that the respondent undertake treatment by way of exercise with professional supervision. Her condition had stabilised sufficiently for finalisation on the basis that the quality of her life had been reduced by the incident and her ongoing symptoms were causing her some continuing reduction in her quality of life.
119 In my opinion, the evidence justified a finding that by the time of trial the respondent had reached the stage where her symptoms had substantially resolved and would be fully resolved in the very near future, particularly if she acted on the advice she had received regarding the need
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- for exercise. In these circumstances I consider that the respondent was entitled to an award of damages on the basis that until trial her work as a part time console operator was the maximum that could reasonably be expected. Given the termination of her employment with the appellant and the unlikelihood of obtaining alternative employment in a bank, it was reasonable for her to retrain for alternative employment. The evidence showed that it was not until August 1999 that Professor Harper considered that, with some reservation she was ready to seek full time employment. Earlier reports from others were shown to be optimistic or qualified. Even at the time of trial the learned Judge the learned Judge took the view that her symptoms were not fully resolved.
120 In my opinion the evidence at the trial justified a finding that by the time of the trial the respondent had reached the stage where her symptoms would resolve in the very near future, particularly if she acted upon the recommendations made concerning the need for exercise. In these circumstances I consider that the respondent was entitled to an award of damages for loss of earnings on the basis that until trial her work as a part time console operator was the maximum that could reasonably be expected, coupled with her course of study to facilitate entry into a new field of work in public administration.
121 I consider that it would be appropriate to award her damages for loss of earnings in the period from 18 May 1998 to the date of trial, being the difference between her earnings as a bank officer and a part-time console operator. On the figures provided to this Court by counsel for the respondent, without objection by counsel for the appellant, the respondent's weekly income from 18 May 1998 was $248 per week net. During the relevant period the net earnings of a CSO were $420 per week net. This produced a loss of $206 per week or $41.20 per day based on a five day week. The loss amounted to $11,341 in the period made up as follows:
18 May 1998 - 30 June 1998 $906.40
1 July 1998 - 30 June 1999 $8,944.00
1 July 1999 - 1 September 1999 $1,490.66
$11,341.06
122 Interest on $906.40 from 1 July 1998 to judgment on 22 February 2000 at 6 per cent amounts to $89.32; on $8,944 at the same rate from 1 July 1999 to 22 February amounts to $335.38; and on $1,490.66
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- amounts to $42.65, a total of $467.35. With interest added the total is $11,808.41.
Grounds 4 and 5 of the Cross-appeal
123 Ground 4 contended that the learned trial Judge was wrong in law and in fact in not allowing the respondent any amount at all for loss of earning capacity in that he failed to consider the effect of the respondent's residual symptoms on her fitness for work generally and, in particular, in non-banking duties which, given her dismissal from the bank and the unlikelihood of finding alternative banking duties, was the appropriate question to be determined. I have interpreted this ground as directed to future loss of earning capacity. Further, ground 4 contended that the learned trial Judge had determined the question of loss of earning capacity by finding that the respondent's physical injuries and, in particular, her difficulties in lifting and raising her arm, would at some time in the future resolve, without determining when that time would be or awarding the respondent any damages in respect of the intervening period.
124 Ground 5 contended that further, and in any event, even if the learned trial Judge was correct in finding that the respondent was fit for her pre-accident duties from 15 September 1997 (which was not admitted) he failed to consider properly or at all the extent to which her earning capacity was diminished in respect of other vocations as he should have gone given:
(a) the termination of her banking career;
(b) her limitations in terms of heavy lifting and arm raising as found by the learned Judge; and
(c) his finding that such limitations had not resolved but would resolve at some unidentified time in the future.
125 I have also regarded this ground as relating to future loss of earning capacity. It is convenient, therefore, to consider grounds 4 and 5 together.
126 It was submitted for the respondent that, as a matter of common sense, the motor vehicle accident was a contributing cause of her loss of employment with the appellant. As a result, she had lost her chosen career and had been required to retrain. Hence, at the time of trial, she was working part time and retraining by undertaking Justice Studies with a view to entering the Public Service.
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127 It was submitted on behalf of the appellant that there was no allowance for loss of earning capacity after 23 October 1997 because any symptoms after that date were not related to the accident, and there was no evidence of any loss of earning capacity after that date. For the reasons already stated I do not accept that submission.
128 As to ground 5, it was contended by the appellant that it was wrong to suggest that the respondent's banking career had been terminated. The position was that her employment with Challenge Bank had been terminated on the ground that her performance of her duties was inadequate. It was submitted that his Honour did not find there was a restriction on arm raising but concluded that "any restriction on arm raising or heavy lifting will resolve". That necessarily implies a finding of such a restriction.
129 Further, the report from the Balga Medical Centre dated 9 February 1998 stated that:
"… psychologically she was feeling better and she was very keen to start working again. Hence, I certified her to start light duty four hours per day in a non-stressful situation, starting from 12 January 1998."
- The report went on to say that following the termination of her employment, "she is feeling more depressed and at present she is unfit again for work". It was contended that the respondent's unfitness at that time was the result of depression arising from the termination of her employment rather than the motor vehicle accident. For the reasons already expressed, I have concluded that the accident cannot be excluded as a contributing cause for the termination.
130 It is not clear whether his Honour found that there were any limitations on heavy lifting and arm raising. These matters were mentioned in passing by Dr Wignell in his report dated 15 September 1997 when she was certified fit to return to work on that day. As has already been seen in the reports by Professor Harper of 17 November 1998 and 16 August 1999, she was not capable of manual work involving lifting and bending as at the earlier of those dates and as at 16 August 1999 she was capable of full time work with some restrictions. These were to avoid prolonged sitting and static postures, but these problems were then expected to resolve within a few months. According to Professor Harper her employability could be expected to return to normal as her symptoms resolved.
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131 Counsel for the respondent submitted that some allowance should be made for some modest future loss of earning capacity. In my opinion, the evidence does not suggest anything more than the view of Professor Harper suggested. This suggests no more than that an allowance should be made for a few months after the date of his report, namely, 16 August 1999. In my opinion, an appropriate allowance would be an award of damages for loss of earnings for three additional months from the date of trial, namely, from 1 September 1999 to 30 November 1999, a period of 12 weeks. Using the same figure as previously of $206 per week that produces an award of $2,472, which together with interest at 6 per cent from 30 November 1999 to the date of judgment of $570.46 amounts to $3,042.46.
Summary
132 In my opinion, the appeal should be allowed, but only to the extent that by consent the award for past economic loss to 20 January 1998 of $4,486.68 should be reduced by $1,410 leaving a net figure of $3,076.68. The appeal should otherwise be dismissed.
133 As to the cross-appeal, I consider that the cross-appeal should be dismissed insofar as ground 1 claimed that the respondent was entitled to damages for loss of earnings in the period from 21 January 1998 to 17 May 1998. The cross-appeal should be allowed by an award of damages and interest for loss of earning capacity in the period 18 May 1998 to 1 September 1999 in the sum of $11,808.41 inclusive of interest to the date of judgment. In addition, the respondent should also be awarded damages for loss of future earning capacity in the sum of $3,042.46 inclusive of interest. As a consequence the $24,980.96 damages awarded by the learned trial Judge should be increased to $38,421.83 as follows:
General damages $16,875.00
Special damages 491.00
Future medical expenses 3,000.00
Past economic loss to 20/1/98 4,486.68
Less 1,410.00 3,076.68
Past economic loss from
21/1/98 to 1/9/99 11,808.41
Future loss of earning capacity 3,042.46
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- Out of pocket expenses 128.28
TOTAL $38,421.83
- This represents an increase in the damages award of $13,440.87.
134 PIDGEON J: I agree with the reasons of the Chief Justice and with the orders he proposes.
135 MURRAY J: In this matter I have had the advantage of reading in draft the reasons of Malcolm CJ. I respectfully agree with them and with the ultimate increase in the award of damages which is proposed.
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