Leong, L v Ferrington, R.M
[1987] FCA 116
•17 MARCH 1987
Re: LAWRENCE LEONG
And: ROSS McARTHUR FERRINGTON
No. ACT G46 OF 1986
Appeal - Damages
COURT
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Gallop J.
Neaves J.
Spender J.
CATCHWORDS
Appeal - quantum of damages - award of general damages for phobic anxiety reaction - no question of principle.
Damages - role of appellate court - no new question of principle.
Whim Creek v. Federal Commissioner of Taxation (1977) 17 ALR 421
Wilson v. Piesley (1975) 7 ALR 571
Precision Plastics Limited v. Demir (1975) 132 CLR 362
Gamser v. The Nominal Defendant (1976-77) 136 CLR 145
Moran v. McMahon (1985) 3 NSWLR 700
HEARING
CANBERRA
#DATE 17:3:1987
ORDER
Appeal allowed.
Judgment in the sum of $18,530 set aside and judgment entered for the respondent for the sum of $11,980.
The respondent pay the appellant's costs of the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
On 22 September 1984 the respondent was injured in a motor vehicle collision between his motor vehicle and the defendant's vehicle at the intersection of Bunda and Akuna Streets, Civic in the Australian Capital Territory.
At the trial of his action for damages for personal injuries in the Supreme Court of the Australian Capital Territory liability was admitted by the present appellant and the Chief Justice awarded damages to the respondent in the sum of $18,530 comprised of the following:
General damages $16,000
Interest on $12,000, being portion
of the general damages 1,470
Hypnotheraphy fees 870
Other agreed out-of-pocket expenses 190
TOTAL $18,530
The appellant contends that the component of $16,000 for general damages was excessive in the circumstances and seeks a variation of the award of damages.
The injuries allegedly sustained by the respondent in the subject accident were particularised as:
(a) A whiplash type injury to the cervical spine.
(b) Bruising to the inner aspect of the left arm.
(c) Aggravation of a pre-existing but asymptomatic serious nervous condition.
(d) Headaches.
(e) Phobic anxiety reaction.
(f) Tinnitus.
The respondent's evidence on the hearing of the action in relation to physical injuries was that while waiting at the scene of the accident he was dazed, had a sore neck on the right hand side and that his left arm had hit the console in the middle of the car. He was taken to hospital by a friend and went home after approximately an hour or an hour and a half. He spent most of the next day in bed as he did not feel like getting up. His neck was sore and he went to his private doctor the following day. At that time his arm was still sore, he was having fits of sweating and diarrhoea and was generally nervous. He also had ringing in the ears.
The respondent's general practitioner recommended physiotheraphy treatment and the respondent had two or three treatments. After physiotheraphy he had pain in his shoulder and neck if he carried heavy weights like change for business at work. He had a staff member come to the bank with him to carry the change back. After about two and a half months the respondent was "okay". There was no problem in his left arm after the physiotheraphy.
The report of the respondent's general practitioner, Dr D.C. Roantree, dated 15 November 1984 was in evidence at the trial. Dr Roantree said in the report, inter alia:
"He complained of pain over the lower neck radiating into his right shoulder, and a painful left chest and left elbow. In addition he complained of recurring tremour and anxiety attacks since the accident.
Examination revealed a good range of neck movement with pain at all the extremes. A haematoma was noted over the right sterno-mastoid muscle. He went to work that day but returned on the same afternoon, complaining of pain in his arms, deteriorating during the day. He also complained of tinnitus and attacks of tremors and sweats. He was diagnosed as suffering from an anxiety state as well as a cervical sprain. Non-steroidal anti-inflammatories and tranquillizers were prescribed.
On review on 26th October 1984, he related anxiety when driving and pain in his right shoulder after driving. He continued to suffer tinnitus and pain in the right paravertebral muscles on lifting."
In cross-examination the respondent conceded that he had been receiving physiotheraphy treatment for a lower back problem from July 1981 for a period of 3 or 4 years. It was in respect of this condition that he consulted his physiotherapist after the 22 September 1984 accident, on 26 October 1984. The consultation had no relation to the injuries sustained in the accident. The learned trial judge accepted the respondent's evidence that when he consulted his general practitioner he had pain in the region of the neck radiating into the right (sic) arm and shoulder as well as a general feeling of nervousness, ringing in the ears, diarrhoea and fits of sweating. His Honour went on to say:
"However, he said and I accept that over the two or three months following the injury he had some difficulty in lifting and handling heavy objects. He was able to obtain assistance from his employees in such matters as, for instance, carrying the change to and from the bank. He was still complaining of pain in the right shoulder after driving when he was reviewed by Dr Roantree on 26 October 1984 and indeed when he spoke to Mr Strickland, a hynotherapist, on 3 November
1984. I am satisfied that by the end of November 1984 the plaintiff was free from any ongoing pain or disability caused by injury to the neck or shoulder. The other symptoms have continued, but diminishing over time, depending on circumstances."
It was submitted on behalf of the appellant that there was no evidence upon which His Honour could have made a finding of pain or disability in the right arm or shoulder arising from the subject accident and that therefore any award made in relation to the right shoulder was erroneous. The reference by his Honour to the right arm and shoulder is in my opinion merely a slip. His Honour obviously intended to refer to the left arm and right shoulder about which the plaintiff had given evidence at the trial. In his evidence in chief the plaintiff said that whilst waiting at the scene of the accident he had a sore neck on the righthand side and that his left arm hit the console in the middle of the car. The report of 15 November 1984 by Dr D.C. Roantree, set out above, stated that the plaintiff had complained to him on 24 September 1984, two days after the subject accident, of pain over the lower neck radiating into his right shoulder, painful left chest and left elbow. The plaintiff further said in evidence that he had pain in his shoulder and neck if he carried heavy weights, like change for business at work, and that after about 2 1/2 months it was "okay". Asked about his left arm, he said that there was no problem there.
It is clear on the evidence that the plaintiff sustained some sort of injury to his neck causing radiating pain into the right shoulder which gave him trouble with carrying heavy weights. He also had some injury to the left arm and all of this had abated, as the trial judge found, by the end of November 1984. Looked at in this way his Honour's findings of fact were supported by the evidence, although his Honour obviously meant to refer to the left arm rather than the right arm and no error has been demonstrated.
As appears from the reasons for judgment and as the appeal was argued before this Court, the real substance of the plaintiff's claim was his psychological reaction. It is necessary to review the evidence on this aspect of the plaintiff's claim. The respondent said that when driving his Ferrari motor vehicle, which at that stage he had owned for one year and five months, he became very nervous and up-tight and the symptoms of nervous sweats and diarrhoea returned. He had paid $79,000 for the vehicle in February 1985, some months after the subject accident. He said that he did not suffer those symptoms when driving other vehicles because they were not worth very much money. The Ferrari mainly sat in the shed. He might take it out of the shed every three or four weeks and wash it and look at it, sit in it and put it back in the shed. He said that his anxiety about the Ferrari motor vehicle was that it might become involved in an accident or otherwise suffer damage. His anxiety was not motivated by any fear for his own safety. The anxiety was not confined to damage to the Ferrari while driving, but extended to the risk that it could be damaged while parked.
The respondent was examined by Dr J.B. Truman, Consultant Psychiatrist, at the request of the respondent's solicitors on 21 March 1985. In his report to the solicitors of 25 March 1985, which was in evidence, Dr Truman referred to the symptoms of which the respondent complained and said that with the passage of time those anxiety symptoms when driving the high performance type of car were fading. He referred to the fact that the respondent had been subject to anxiety tension problems in the past which first started during his wife's chronic illness of some seven years duration and following her death in October 1982. The respondent had also related to Dr Truman that he had had anxiety type symptoms following disagreements with his fiancee subsequent to the wife's death.
Dr Truman expressed the opinion in his report that the subject motor vehicle accident had produced a phobic anxiety reaction in the respondent manifesting as symptoms of anxiety driving high performance cars. He said that with the passage of time the condition was easing, so no psychiatric treatment was indicated.
He was reviewed by Dr Truman on 3 May 1986, shortly before the trial of the action, and Dr Truman's report to the solicitors of the same date was in evidence at the trial. At that examination the respondent complained to Dr Truman of still having symptoms of anxiety when driving expensive cars but not when driving his low cost van. Dr Truman expressed his overall impression that the anxiety state was quite severe during the first few months after the accident but had levelled off.
The trial judge found that the respondent was a person who was predisposed to extreme reaction of a depressive nature. He accepted that the respondent could not drive his expensive motor vehicles (a 1973 Mustang and a 1985 Ferrari) on a public street without developing a feeling of anxiety which sometimes resulted in diarrhoea. His Honour said that the extent of the fear and anxiety depended upon the value of the vehicle concerned and did not arise when the respondent drove around in a small Datsun 120Y vehicle or in a van which he used for transporting goods.
His Honour referred to the opinion of Dr Brian Andrea, consultant physician, who had examined the respondent on behalf of the appellant. Dr Andrea's opinion, which was in evidence in the form of his report to the appellant's solicitors dated 16 July 1985 and his oral testimony at the trial, was that the respondent would be wise to get rid of his Ferrari. Having reviewed that evidence, His Honour said:
"However I think that is very much a matter for the plaintiff and it resounds in damages either way. If he is to be regarded as required to minimise his damage by selling the vehicle then he would be deprived of the enjoyment that he gets from simply washing and polishing and sitting in it. If he wishes to continue to enjoy limited use of the vehicle then he has to put up with the fear and anxiety which still persist when he drives it in the street. However I am convinced that the level of anxiety associated with the use of the vehicles which can be seen to result from the accident is now minimal and is likely to disappear altogether. Even without the accident the plaintiff was likely to have felt concern at least and on occasions a degree of anxiety about using his expensive vehicles on the public roads. I accept that to date the plaintiff has been anxious about resuming racing car driving, but again I feel that the degree to which the accident contributed to that anxiety is by now minimal and I have to take into account that but for the accident there was always a possibility that something else might have happened to the plaintiff to at least contribute to that anxiety."
His Honour, accepting Dr Truman's assessment, found as a fact that the subject accident produced a phobic anxiety reaction in the respondent manifesting his symptoms of anxiety whilst driving high performance cars. He also found that the respondent's general physical and psychological condition had been affected by his tendency towards alcoholism and the strain of a short-lived marriage (his second). He said that the respondent was entitled to be compensated for his physical and mental pain and suffering and being deprived to a considerable extent of what was formerly a great satisfaction to him, namely, the ability to drive and race expensive cars. His Honour said that the extent to which the respondent was able to indulge that interest was not unqualified and that he was still able to indulge his interest to a considerable extent. His Honour was convinced that at the time of delivering judgment the respondent was, or very soon would be, virtually back in the mental and physical condition in which he would have been even if he had not been injured in the car accident.
In the exercise of its jurisdiction to hear and determine appeals from judgments of the Supreme Court of a Territory pursuant to s.24 of the Federal Court of Australia Act 1976, this court is to have regard to the evidence given in the proceedings out of which the appeals arose and has power to draw inferences of fact and, in its discretion, to receive further evidence (s.27). It may, in the exercise of its appellate jurisdiction, inter alia, affirm, reverse or vary the judgment appealed from and give such judgment or make such order as in all the circumstances it thinks fit or refuse to make an order (s.28(1)(a) and (b) (Whim Creek v. Federal Commissioner of Taxation (1977) 17 ALR 421)). An appellate court will not disturb a primary judge's award of damages for personal injury unless it is convinced that he has acted on a wrong principle of law or that he has misapprehended the facts or that the amount of damages awarded is inordinately high so as to be a wholly erroneous estimate of the damage suffered (Wilson v. Piesley (1975) 7 ALR 571; Precision Plastics Limited v. Demir (1975) 132 CLR 362 per Gibbs J., as he then was, at 369; Gamser v. The Nominal Defendant (1976-77) 136 CLR 145; see also the collection and discussion of the authorities in Moran v. McMahon (1985) 3 NSWLR 700 per Priestly J.A.).
The appellant has not contended that the trial judge acted on a wrong principle of law or misapprehended the facts. The substance of the appeal is on the ground that the award of $16,000 for physical injuries and phobic anxiety reaction is inordinately high and amounts to a wholly erroneous estimate of the damage suffered.
There are a number of matters which, in my view, indicate that the award of $16,000 for general damages was excessive in the circumstances. So far as the physical injuries are concerned, they were not very severe in the first place. The trial judge found that by the end of November 1984, just two months after the accident, the respondent was free from any ongoing pain or disability caused by injury to the neck or shoulder. Even during that period the physical injuries did not affect the respondent's earning capacity or the prosperity of his business as a service station proprietor.
So far as the phobic reaction is concerned, it is significant that the respondent purchased the 1973 Mustang and 1985 Ferrari motor vehicles after the accident. His Honour was no doubt correct in his finding that even without the accident the respondent was likely to have experienced concern at least, and on occasions a degree of anxiety, about using those expensive vehicles on the public roads. His Honour accepted the medical evidence that those symptoms of anxiety did not preclude the respondent from indulging his interest in expensive motor cars and was convinced that at the time of judgment the respondent was or very soon would be back in the mental and physical condition in which he would have been even if he had not been injured in the car accident. Bearing in mind also the respondent's disposition to anxiety state and other factors such as alcoholism, failed second marriage and other physical complaints, the award for general damages appears excessive.
I would reduce the award to $10,000 and, adopting his Honour's apportionment of the award of general damages for the purposes of calculating interest, I would assess interest on three-quarters of that sum, namely $7,500 at 14% and reduce the result by half in accordance with the established practice. The amount of interest to be added to the sum of $10,000 would therefore be $920.
In the result I would set aside the judgment for the sum of $18,530 and substitute judgment for the respondent in the sum of $11,980.
The amount by which I would reduce the award appealed against is thus $6,550. It should be a rare occurrence for an appellate court to reduce an award of damages by such a small sum. However, I think it is appropriate to do so in the present appeal because the amount of the reduction is in effect one-third of the award of damages appealed against.
I would order that the respondent pay the appellant's costs of the appeal.
JUDGE2
I have had the benefit of reading the reasons for judgment prepared by Gallop J. I agree, for the reasons given by his Honour, that the appeal should be allowed with costs and the amount of damages awarded by the Supreme Court of the Australian Capital Territory reduced to $11,980.
JUDGE3
I agree in the judgment of Gallop J. and with his reasons.
Since I am disagreeing with the conclusion of the learned primary judge, and in an area of impression and discretion, I think it proper to say that accepting, as did the appellant, the findings by the learned trial judge as to the injuries and their consequences as outlined by him, my own conclusion is that the quantum of the award is excessive in the relevant sense.
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