Kemp v Alway

[2003] NSWCA 123

CITATION:	KEMP v ALWAY [2003] NSWCA 123
HEARING DATE(S):	7 May 2003
JUDGMENT DATE:	7 May 2003
JUDGMENT OF:	Mason P at 1; Tobias JA at 50
DECISION:	Appeal allowed.
CATCHWORDS:	Motor Vehicle Accident - Injury - Respondent suffering ongoing symptoms - damages - Non-economic loss - assessment of impairment at 30% of a most severe case - whether outside the bounds of sound discretionary judgment - Future out-of-pocket expenses - whether award too generous - Future economic loss - challenge to cushion award - s70A Motor Accidents Act - primary finding of 25% likelihood of diminished future economic capacity - whether finding supported by evidence
PARTIES :	Christian Phillip KEMP v Brooke ALWAY
FILE NUMBER(S):	CA 40485/02
COUNSEL:	Appellant: A G Campbell SC/ T Bland Respondent: G Smith
SOLICITORS:	Appellant: Hunt & Hunt Respondent: Kevin Byrnes

LOWER COURTJURISDICTION:	District Court - Newcastle
LOWER COURT FILE NUMBER(S):	DC 118/01
LOWER COURT JUDICIAL OFFICER :	Sidis DCJ

CA 40485/02

MASON P
TOBIAS JA

Wednesday 7 May 2003

KEMP v ALWAY

JUDGMENT

1 MASON P: The respondent was a front seat passenger in a car being driven through Wauchope. The appellant was driving a four-wheel-drive vehicle with bull bar which came out of the driveway and struck the vehicle in which the respondent was travelling on the passenger side.

2 The respondent was wearing a seat belt, but the force of the impact threw her forward so that her knees impacted with the dashboard. She was then thrown backwards and to the side and her left shoulder hit the pillar at the side of the car. She was winded by the force of the impact. Her right breast was bruised by the seat belt. She was taken by ambulance to hospital where she was x-rayed and kept under observation for four hours before being taken home.

3 Breach of duty was admitted.

4 Damages were assessed by Judge Sidis at $129,287.35 made up as follows:

Past out of pocket expenses (as agreed) $ 6287.34
Future out-of-pocket expenses 20,000.00
Future economic loss 35,000.00
Non-economic loss (30% of a most extreme case) 68,000.00
$129,287.35

5 The respondent and her husband gave evidence at the trial and were cross-examined. Bundles of medical reports were admitted without objection and without cross-examination of the doctors on their sometimes discordant views.

6 The respondent was 24 when the accident occurred, on 26 June 1999. She left school in 1992 after having completed year 12. She studied hospitality for 12 months and then transferred to training at TAFE in office work, administration and accounting. She obtained work in various places and ultimately secured a position as a computer operator with Country Energy in early 1999. She remained in steady employment with that organisation at the time of trial (May 2002).

7 The accident caused her to lose three days of work. Thereafter, her arm was in a sling for one month, but she presented at work each day and was paid her normal wage. She resumed her normal duties about one month later. Just before the trial she had obtained a promotion to the position of Contracts Administrator for Information Services. There was no claim for past loss of earnings.

8 The learned trial judge's primary findings are not in issue.

9 Her Honour was impressed with the respondent and her husband as credible witnesses who had given their evidence in a straightforward manner. Where the respondent’s testimony as to her symptoms differed from the assessment reached by the appellant’s doctors as recorded in their reports the judge preferred and accepted the respondent’s evidence. The judge was entitled to do so, as the appellant accepts. This means that an issue fought at trial and resolved in the respondent’s favour by the primary judge, as to whether the respondent’s low back pain was referable to the accident, is no longer in dispute.

10 The accident involved a significant physical impact and its immediate consequences for the respondent have already been described. She slept poorly the first night and awoke in considerable pain. The next day she consulted her general practitioner who referred her for physiotherapy for the left shoulder. When she went back to work two or three days later her arm was in a sling and she felt pain in the shoulder and back. Neck pain developed some weeks later.

11 In the early period after the accident it was the left shoulder that was causing the most problems. With physiotherapy, this pain diminished but it has not gone away. The pain produces headaches about twice a week. She described her pain as varying between 4 or 5 out of 10 up to 8 to 10 out of 10 if it is aggravated.

12 About a month after the constant shoulder symptoms receded the respondent began to experience pain in the lower back. She sought relief through physiotherapy and continued with this form of treatment after February 2001 when the appellant declined to meet further physiotherapy expenses.

13 At the time of trial the respondent was receiving physiotherapy two or three times a month and she told the judge that she would continue to undertake this form of treatment. Physiotherapy gives full relief for only a couple of days. The respondent finds that she can sit for about half an hour at a time before her back starts to get aggravated. She takes Celebrex and Panadeine Forte for the back pain. The neck and shoulder pain continues to trouble her from time to time, particularly if it is cold. She tries not to use the left shoulder to do things such as picking up heavy items and she has problems sleeping on the left side of her body. She cannot do heavy manual work or housework and she finds herself unable to continue playing tennis or walking fast.

14 The respondent complained of an emotional reaction to the accident in terms of anxiety when travelling as a passenger in a car. She was referred to a counselling psychologist for assessment and treatment and she saw her three times in 2001. The psychologist diagnosed PTSD and treated it with counselling. There had been ten consultations by the time of trial. The respondent said that this was helping her, although it was a difficult and slow process.

15 The respondent married on 3 May 2002. She is planning to have a family, perhaps two or three children. Discussions with her husband (who works as a panel beater) have been to the effect that whoever is earning the higher income will continue to work while the other partner looks after the children. This means that one cannot assume that it would be the respondent who would stay at home for the whole period involved in the early care of children.

16 The respondent’s husband corroborated his wife as to the longer term impacts of the accident. Before the accident she had been outgoing and bubbly and nothing held her back. She played tennis and had no anxiety about traveling as a passenger in motor vehicles. Before the accident she had no physical restrictions, she slept well and had no headaches other than those which occurred as a normal incident of everyday life. She now slept poorly, rising regularly at 3:30am. He said that her complaints build up so that after every second or third day she is in some difficulty. In the evening, when they are watching television, she will stand up 1 or 2 times and stretch using the exercise ball which she has at home. He said that she goes to the gym regularly, not for fun but in order to assist her condition.

17 As indicated, the primary judge found that low back pain commenced to be felt approximately one month after the accident and that it stemmed from the accident. The physiotherapist began to focus on the lower spinal problems from early September 1999 onwards, after the shoulder settled down.

18 The respondent consulted Dr Hopcroft, an orthopaedic surgeon, initially in September 2000. He diagnosed a whiplash type injury to the cervical spine, a strain injury to the lumbosacral spine and capsulitis of the left shoulder. He suggested that the respondent would be likely to require ongoing intermittent physiotherapy and he anticipated that, by applying herself to a rehabilitation program, within a further 12 months significant further resolution might be achieved. Later events have shown that things have not turned out as well as he then expected.

19 When Dr Hopcroft saw the respondent again in April 2001 she reported continuing significant pain. The doctor noted the findings of a CT scan of 21 September 2000 which suggested that there were degenerative changes in the lumbar area. He suggested that the severity of the injury to the lower back may have caused the changes demonstrated in the lumbosacral spine, or may have aggravated pre-existing asymptomatic changes at that level. The doctor believed that the respondent would require an ongoing programme of hydrotherapy, abdominal and back bracing exercises and vertical traction manoeuvres to keep her back pain under control and to prevent further premature degenerative changes developing.

20 As regards the shoulder, an MRI scan of 6 March 2001 demonstrated to Dr Hopcroft a partial tear of the supraspinatus tendon. In a report of 9 May 2001 the doctor stated that the respondent remained at risk of sudden rupture of that tendon if it was placed under pressure. He linked this injury to the accident. He recommended a regular program of exercises to strengthen surrounding muscles and to help relieve pain at the joint. He suggested that the respondent avoid activities such as lifting above the shoulder level, but indicated that she should continue to undertake the fullest range of movement of her shoulder.

21 In March 2002 Dr Hopcroft noted that the respondent continued to have significant ongoing problems, especially with low back pain. She had been receiving extensive physiotherapy and had undertaken gymnasium training work which had assisted in resolving some of her symptoms. He noted that she was continuing to use anti-inflammatory medication. As far as the respondent’s future employment prospects were concerned, he felt that it was unlikely that she would lose time from clerical work provided she continued her exercise program.

22 Dr Ireland saw the respondent on instructions from the appellant in May 2001. He concluded that she had minor symptoms in her neck and her left shoulder and low back. He did not think that she needed any further treatment. In his view she was quite fit for work. He advised, however that she be encouraged to maintain an exercise program.

23 Judge Sidis summarised the evidence of the doctors who saw the respondent on behalf of the appellant . To the extent that they rejected a diagnosis of impairment in the lower back, their evidence was rejected by the trial judge in light of her acceptance of the respondent as a credible witness and the evidence indicating that she had complained of low back pain to the physiotherapist in late 1999.

24 Her Honour summed up her findings in the following terms:

This results in a plaintiff with problems of headaches resulting from her neck injury, problems with her shoulder either in the nature of a tear or bursitis, but which will require ongoing care and attention by the plaintiff and her complaint of constant low back pain. She is in some respects a model plaintiff in that she has applied herself to returning to work with some modifications allowed her by an understanding employer. She has also applied herself to a programme of gymnasium exercise in order to maintain her fitness so that she can continue with her employment. There is no claim for compensation in respect of assistance with her domestic obligations.

She is still a young woman. At the time of the accident she was only twenty four years of age. She is now twenty seven. She has recently married and she expects to be involved in responsibilities for family in the not too distant future. I would expect that at that stage she will have to work very hard to overcome her discomforts and limitations.

There is little, if any, radiological evidence to explain the plaintiff’s complaints, and the most that I could say about the problems with the cervical and lumbar spine is that they are most likely related to musculoligamentous strains. There is some radiological evidence of disturbance to the left shoulder.

It is however almost three years from the date of the accident, and notwithstanding the plaintiff’s efforts at maintaining fitness and minimising her problems, she continues to have significant ongoing symptoms and it is apparent that she will do so into the future.”

25 In essence, the trial judge found that the respondent suffered soft tissue injury to the neck and the lower back as well as an injury with her left shoulder in the nature of a tear or bursitis. These problems continued after the initial period following the accident. There is a continuing restriction in the respondent’s capacity to elevate her left shoulder.

26 The medical evidence and that of the respondent indicate that the symptoms are ongoing and indefinite in their duration. The respondent suffers frequent headaches and continuing restrictions due especially to the lower back pain. She seeks relief through anti-inflammatory medication, regular physiotherapy two or three times a month and an almost daily regime of working out at the gym. Obviously her capacity to keep the pain under control by this lastmentioned means will be restricted to a degree if and when she starts a family, as she plans to do.

27 The injuries have restricted her in that she has stopped playing tennis and is no longer able to enjoy camping. She now sleeps only five hours per night due to back pain.

28 There is in addition the mild reactive condition diagnosed by Dr Lewin psychiatrist, who saw the respondent on behalf of the appellant. The respondent’s anxiety about being a passenger in a car and her fears about her husband being injured were accepted by the trial judge as an aspect of her condition relevant to assessment of non-economic loss. To date of trial she had ten session with the counselling psychologist Ms Forten. On the evidence it does not appear that this condition is a serious or permanent one but it is far from negligible and it represents an aspect of her compensable injuries.

29 In my view the challenge in relation to non-economic loss is not established. The appellant submitted that her Honour’s award based on an assessment of 30 per cent of a most severe case was outside an appropriate range. It was submitted a figure corresponding to a 20 per cent assessment should be substituted.

30 In my view the 30% assessment appears somewhat generous, but cannot be characterized as outside the bounds of a sound discretionary judgment. In saying this I note the young age of the respondent, the fact that her pain and discomfort has continued to a significant degree despite her doing everything recommended by her treating doctor and physiotherapist. The respondent is working very hard to restrict her continuing discomfort and limitations stemming from the accident. As she get older and busier with a family her situation may well worsen, if only because of increasing difficulty in getting regularly to the gym. The appellant laid stress on the fact that the injury is a soft tissue one but that in itself seems of no moment if the respondent is accepted as a witness of truth.

31 The appellant challenges the award for future out of pocket expenses on the basis that it was entirely global. It was, but precise mathematical exactitude is specious.

32 Sidis DCJ explained the award of $20,000 on the basis that it had regard to

….the evident need for regular physiotherapy and medication. There is also, although not specifically claimed, the potential expense of an arthroscopy for the shoulder, the expense of the necessary further psychological treatment and the gymnasium expense.

33 The claim is formulated in Part 9 of the Statement of Claim. The respondent’s evidence was that she spent $37 two and half times per month on physiotherapy. As I read her evidence at Tr p14 the scripts for Panadeine Forte last 6 months and those for Celebrex a couple of months. Each script costs about $28. She also said that she probably would have the procedure in relation to her left shoulder as suggested by Dr Hopcroft in his report dated 29 August 2001. Its cost is approximately $2000 and a further procedure costing $4500 is on the cards according to that same report. On top of this, it would be legitimate to include some allowance for further psychological counselling and gymnasium expenses. Allowing for the respondent’s life expectancy, the trial judge’s allowance represents approximately $20 per week for future out of pocket expenses. This award was open to her Honour and cannot be disturbed on appeal. The appellant suggests that the need for these expenses is likely to diminish over time, but such a conclusion is by no means compelled by the evidence.

34 Thirdly, the appellant challenges the cushion award for future economic loss.

Her Honour said this:

The plaintiff does not claim for past economic loss, but a claim is made for the future on the basis that her injuries will affect her capacity to choose employment. For the defendant, it is stated that the plaintiff is in secure employment, but I do not accept that any employment in this modern era can be described as secure. There is also the possibility for interruption to the plaintiff’s employment during the course of the development of her family responsibilities.

Section 70A of the Motor Accidents Act 1988 requires that I find that there is at least a 25 per cent likelihood that the claimant will sustain a future economic loss or that there is at least a 25 per cent likelihood that the claimant will sustain a diminution of future economic capacity. In this case the consequences to the plaintiff are such that I am certain that her future income earning options will be significantly reduced as a result of her injury, and I am satisfied that there is at least a 25 per cent likelihood that that will result in a diminution of her future economic capacity.

I have provided a buffer to deal with this contingency in the sum of $35,000.

35 The award is challenged by the appellant because her Honour does not sufficiently expose reasoning justifying that award. We were referred to Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430. I think there is some strength in this submission but given that her Honour did give some reasons and given that she was dealing with a buffer or cushion award, I prefer to place that complaint to one side and to concentrate on whether the material justifies the conclusion. Given that this is an appeal by way of re-hearing and we have the benefit of her Honour’s findings about the nature and extent of the injury, we would have to reassess in any event if the only problem were absence of reasons.

36 In supporting the award, the respondent who was invited to address the Court first on this aspect of the judgment, relies upon the findings of her Honour as to the nature and likely duration of the injuries suffered by the respondent. The respondent also points to the evidence at pages 17 and 18 of the trial transcript in which the then plaintiff indicated her present opinion as to the difficulties or inabilities she would encounter in dealing with various types of job. She gave that evidence in relation to “working in a clothing store or something like that”, doing cleaning type work, doing work that involved sitting in the one place all the time and doing work that involved standing for a long period of time. She was not asked whether uninjured she would have gone into jobs of that nature, but of course the possibility that she might is something that the Court can take into account.

37 The threshold for an award for future economic loss is stated in s70A of the Motor Accidents Act 1988 which provides:

70A. Claimant's prospects of future economic loss
A court shall not award damages for future economic loss or damages for diminution of future economic capacity unless the claimant first satisfies the court that there is at least a 25 per cent likelihood that the claimant will sustain a future economic loss or that there is at least a 25 per cent likelihood that the claimant will sustain a diminution of future economic capacity, as the case requires.

38 Some guidance as to the way in which the Court should approach the task given by that section is provided in Kurrie v Azouri (1998) 28 MVR 406 at 410.

39 A point made by the appellant in its challenge to her Honour’s award in this regard is the need for the Court to be satisfied that any impairment is likely to sound in money. In Husher v Husher (1999) 197 CLR 138 at 143, in the joint judgment of Gleeson CJ and Gummow, Kirby and Haine JJ their Honours said (omitting citations):

Since at least Graham v Baker it has been recognised that it is convenient to assess an injured plaintiff’s economic loss by reference to the actual loss of wages which occurs up to the time of trial and which can be more or less precisely ascertained and then, having regard to the plaintiff’s proved condition at the time of trial, to attempt some assessment of his future loss. But damages for both past and future loss are allowed to an injured plaintiff because the diminution of his earning capacity is or may be productive of financial loss. Both elements are important. It is necessary to identify both what capacity has been lost and what economic consequences will probably flow from that loss. Only then will it be possible to assess what sum will put the plaintiff in the same position as he or she would have been in if injury had not been sustained.

40 Each of the doctors who expressed an opinion on this matter stated their view (with one qualification), that they did not consider the plaintiff’s future employment prospects were impeded as a result of her injuries stemming from the accident. Dr Hopcroft, in his report of 7 March 2002 said:

Regarding this patient’s future employment prospects I believe that provided she undertakes a regular programme of abdominal and back bracing exercises with swimming being the most appropriate sporting activity she could undertake, I feel it is unlikely that she would lose time from secretarial work because of her current symptoms and be unable to continue in such employment into the future.

41 The contingency to which I adverted is that stated in this particular report.

42 Dr Ireland, in a report of 10 May 2001, expressed the view that the plaintiff appeared to be quite fit for work. Dr Lewin, the psychiatrist, concluded in his report of 3 January 2002, that the plaintiff was currently fit for work and that there was no psychiatric condition that would affect her ability inter alia to enjoy aspects of her day to day responsibilities. And Dr Schutz, in a report of 21 May 2001, stated that the plaintiff was fit for her normal job.

43 The findings which ground the awards for non-economic loss and future medical expenses show that there is a possibility of future impairment of earning capacity in circumstances sounding in economic loss. And that possibility is in turn affected by the possibility of deterioration consequent upon the respondent’s inability to maintain the regime of gymnastic exercise that is providing assistance at the present stage in her life. I have not overlooked those matters, but on the findings and the evidence, none of which place this Court in any position of disadvantage to the learned trial judge, I consider that the case falls significantly shy of the section 70A threshold. The respondent’s capacity to maintain full employment to date of trial has been demonstrated. Her skills and experience are clerical and administrative. I do not consider it a very significant likelihood that had she been uninjured, she would have turned to the type of callings referred to in her evidence at pages 17 and 18.

44 I take into account the possibility, perhaps even likelihood, that uninjured, she would have left the paid work force for a period of time at least due to family responsibilities.

45 I do not accept the respondent’s submission that the evidence at pages 10 and 11 of the transcript about taking time off work and adjusting it with overtime relates to any period other than the period of a month or so immediately after the accident.

46 I have regard to the fact that none of the medical evidence suggests a likelihood that her condition will worsen except in consequence of her inability to keep up her exercise regime which I have not overlooked.

47 Finally, I have regard to the medical opinions to which I have referred.

48 We were taken to the passage in the judgment of Heydon J in State of New South Wales v Moss (2000) 54 NSWLR 536 at 87. I do not get any present assistance from that passage which is addressing a situation where earning capacity has been unquestionably reduced and where there was a loss sounding in money already incurred at the time of trial. It is true that an assessment of damages for future economic loss is necessarily judgmental and impressionistic and that this Court must be persuaded that a conclusion reached by the trial judge was not open to him or her. Nevertheless, I am persuaded that an award was not open having regard to the threshold. It also is my view that the evidence does not sustain the award that her Honour did which strikes me as being speculative rather than a properly based cushion or buffer award.

49 For those reasons I would uphold the appeal and vary the judgment below by reducing the verdict from $129,287.35 to $94,287.35. I would award the costs of the appeal to the appellant but grant the respondent, if entitled, a certificate under the Suitors Fund Act.

50 TOBIAS JA: I agree.

51 CAMPBELL: Your Honour there is one other order, with respect, it’s a logically anterior order, and that is that leave to appeal be granted subject to the claimant filing the draft notice of appeal within 14 days.

52 MASON P: Thank you for reminding me about that. There was a rule 8 affidavit wasn’t there or was it always accepted that--

53 CAMPBELL: There wasn’t a rule 8 affidavit your Honour, we said if we were successful in all of our arguments we had a right to appeal, if we acknowledged that we were only partially successful, we probably wouldn’t have a right to appeal so we simply proceeded by way of summons rather than by way of notice of appeal.

54 MASON P: Yes, it seemed to me that the rule 8 affidavit gave you an appeal as a right because you were putting in issue over $100,000 but you haven’t actually filed the notice of appeal and you proceeded down that path so I propose that the orders be as follows:

55 Subject to the filing of a notice of appeal pursuant to leave now granted, the appeal will be upheld and then order 2 will be as I previously indicated.

56 CAMPBELL: May it please the Court, thank you your Honour.

57 MASON P: The orders of the Court will be as I have indicated and the Court now adjourns.

**********

Last Modified: 06/03/2003