Lockhart v Nevin

[1995] QCA 167

IN THE COURT OF APPEAL	[1995] QCA 167
SUPREME COURT OF QUEENSLAND	Appeal No. 207 of 1994
Brisbane
Before	Fitzgerald P. McPherson J.A. Davies J.A.

[Lockhart v. Nevin]

BETWEEN:

LORRAINE LOCKHART

(Plaintiff) Respondent

AND:

WILLIAM FREDERICK NEVIN

(Defendant) Appellant

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 12/05/1995

This is an appeal from a decision in the District court at Southport by which the respondent was awarded damages for injuries sustained in a collision between her bicycle and the appellant's motor vehicle on 16 April 1990. Liability is not in issue, and the appeal is concerned only with the amounts awarded the respondent for future pain and suffering ($21,000) and future loss of earning capacity ($126,000).

The respondent, who was aged 24 years at the time of the accident, suffered injuries including a fracture of the left clavicle, bruising and abrasions to the left shoulder and elbow with a hairline fracture of the proximal ulna bone and a minor head wound and concussion. The dispute which has given rise to the present appeal relates to headaches which the respondent has suffered since the accident. The headaches occur about three times per month and last from three to seven days each time, necessitating absence from work. The trial judge found that "the onset of migraine, consequent upon a head injury, even a minor one is well established as a medical probability", and concluded that the respondent's headaches "are migrainous in nature, are severely painful and frequent and have the effect of debilitating her sufficiently to interfere substantially with her capacity to earn income". When she is suffering from headache, the respondent is forgetful, lacks concentration and is distracted. Prior to the onset of her headaches, the respondent felt "on top of the world". She has changed "from an energetic, outgoing, socially active person to a moody, irritable, depressive recluse likely to fly into a rage or break into tears on the slightest impulse". The trial judge also found that she only manages to retain her current employment due to a benevolent employer or sympathetic superior. Even so, she has been moved to a different, less remunerative, shift. His Honour further found that, at the date of trial, the respondent was suffering a loss of $224 per week as a result of her headaches, and that there is significant risk that she will be retrenched and, if so, at present rates of pay her loss would be $430 per week.

The critical conclusions of the trial judge were as follows:

"... In my view there exists a small chance that she will achieve real relief from her pain and discomfort sufficient to permit her to exercise her earning capacity to its fullest. There is a greater prospect amounting to a probability that the treatment will effect an improvement in her condition which falls well short of relief of that kind. There is also a significant possibility that she gains no relief at all but instead disappointment which will exacerbate the unhappiness which I believe her life of pain and discomfort has brought upon her.

Consequently, it would be quite wrong to assess damages for future economic and non-pecuniary losses on the basis that the [respondent] will probably be restored to her pre-morbid state of health and level of earning capacity. At best, if the proposed treatment achieves all that can reasonably be hoped of it she can expect occasional severe headaches and remissions which might alone be enough to put her at serious risk on the labour market. At worst she will clearly suffer that disadvantage. In between there is a wide range of possible scenarios all resulting in a probability of financial loss and further significant pain and discomfort. The [respondent] is able to demonstrate a present economic loss resulting directly from her disability. This is the sum of $224.00 per week that she loses by reason of her two days absence per week and the loss of allowances she used to receive on the "graveyard shift". That loss is going to continue for as long as she continues to suffer her headaches as she does now. The [respondent] is now aged 28 years and intends to have a full working life if she is able to. The tubal ligation she underwent has removed the risk of pregnancy or the needs of other children affecting her employability and her loss of interest in developing relationships has a similar effect.

The assessment of damages for future loss of earning capacity must take into account the possibility that the migraine treatment proposed will be successful wholly or partly so that she can return to full time employment. That does not mean, of course, that she would necessarily be restored to the "graveyard shift" or be otherwise compensated by her employer for the benefits she has lost. I expect that would be unlikely. On the other hand it would be wrong also to treat her present condition as permanent and unamenable to treatment. In the circumstances that present here I believe that I can do justice between the parties by imposing an appropriate discount to allow for the competing contingencies. That discount should be substantial to provide for the possibility, even a strong possibility, that effective treatment for her migraine headaches will be achieved but at the same time I must not overlook the possibility of failure of that treatment. Should that occur the [respondent's] loss of $224.00 per week is likely to continue and, accepting the evidence of Mr Fletcher, which merely reflects practical commercial reality, the [respondent] will be at real risk of losing her employment with the consequence of substantial additional loss, amounting on current rates to $430.00 per week. Balancing those factors I consider that a reasonable discount rate is 30%.

That seems to me to accord with principles admirably expressed by the High Court in Malec v. J.C. Hutton Pty Ltd 92 A.L.R. 545 (at 548/550 per Deane, Gaudron and McHugh JJ.)"

His Honour added that an award of $30,000 for future pain and discomfort and loss of enjoyment of the amenities of life would be appropriate in the event that the respondent could not obtain relief from her headaches, and applying a discount of 30%, awarded an amount of $21,000.

The case for the appellant substantially consisted of a critical analysis of the passage set out above from the trial judge's judgment; it was said that the discount factor of only 30% was contrary to the evidence of Dr Adams whose evidence, which the trial judge found "highly acceptable ... in preference to ... all other experts", demonstrated that it was not a mere possibility, but a probability, that the respondent could be successfully treated. Much of the uncertainty was caused by the respondent's failure to persist with treatment advised by another expert, Dr Maxwell, instead taking increasing doses of a medication for pain relief prescribed by her general practitioner; although the particular treatment prescribed by Dr Maxwell, a consultant neurologist, had been ineffective, the evidence indicated that other available treatments might, and probably would, have been successful.

The trial judge commenced, as he was entitled to do, with the respondent's present medical condition and its effects on her employability and income and lifestyle. If matters remain unchanged, he considered that she would be entitled to (i) $30,000 for pain, suffering and loss of amenities, and (ii) the present value of the amount of her current weekly loss of income for a period of 30 years. No criticism was made of his approach to this point. Next, he recognised, correctly in my view, that (i) her condition might worsen and her pain and suffering might increase to the point at which her income-earning capacity was destroyed, (ii) her condition might be so improved by treatment that her pain and suffering would cease and her capacities to enjoy the amenities of life and earn income would be fully restored; and (iii) her condition might alter, for better or worse, to any point between those extremes. His Honour then decided that the respondent's condition was more likely to improve with treatment than worsen, making it appropriate to reduce, not increase, the amounts to which she would be entitled if her condition remained unchanged. However, it remained necessary in determining the extent of the appropriate reduction to remember the possibility that the respondent's condition would not improve at all, but worsen. With that in mind, his Honour adopted a moderate discount factor, the effect of which was to reduce the respondent's compensation by 30%.

While Dr Adams' evidence would have supported a higher percentage discount, his evidence did not, in our opinion, require the trial judge to discount by more than the percentage which he adopted.

Accordingly, we are unpersuaded that there was any error in principle, and the appeal should be dismissed, with costs.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No. 207 of 1994
Brisbane [Lockhart v. Nevin]
BETWEEN:

LORRAINE LOCKHART

(Plaintiff) Respondent

AND:

WILLIAM FREDERICK NEVIN

(Defendant) Appellant

FITZGERALD P. MCPHERSON J.A.

DAVIES J.A.

Judgment delivered 12/05/1995

REASONS FOR JUDGMENT - THE COURT

APPEAL DISMISSED WITH COSTS

CATCHWORDS: DAMAGES - personal injuries - whether the trial judge's award of damages for future pain and suffering and future loss of earning capacity was satisfactory

Counsel:	J. McDougall for the Appellant P. McMurdo Q.C. with him R. Howe for the Respondent
Solicitors:	Peter Lawlor Solicitor for the Appellant O'Neill Solicitors for the Respondent
Date/s of Hearing:	6 April 1995