Louizos v Smith

[2002] NSWCA 366

CITATION:	Louizos v Smith & Anor [2002] NSWCA 366
FILE NUMBER(S):	CA 40710/01
HEARING DATE(S):	1 November 2002
JUDGMENT DATE:	8 November 2002
PARTIES :	Rita Louizos - Appellant Les Smith - First Respondent Paul Anthony O'Neil - Second Respondent
JUDGMENT OF:	Sheller JA at 1; Giles JA at 2

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 3978/00
LOWER COURT JUDICIAL OFFICER :	Gamble ADCJ

COUNSEL:	B J Gross QC - Appellant H Marshall - Respondents
SOLICITORS:	Heazlewoods - Appellant Gillis Delaney Brown - Respondents
CATCHWORDS:	Motor accident - assessment of damages - whether properly addressed - flawed in a number of respects - new trial necessary - no question of principle. ND
CASES CITED:	Dell v Dalton (1991) 23 NSWLR 528; Southgate v Waterford (1990) 21 NSWLR 427.
DECISION:	(1) Appeal allowed; (2) Set aside verdict and judgment for the plaintiff and order there be a new trial; (3) Respondents pay appellant's costs of the appeal; (4) Costs of the hearing before Gamble ADCJ be in the discretion of the judge conducting the new trial; (5) Respondents to have a certificate under the Suitors Fund Act if otherwise qualified.

CA 40710/01
DC 3978/00

SHELLER JA
GILES JA

Friday 8 November 2002

LOUIZOS v SMITH & ANOR

Judgment

1 SHELLER JA: I agree with Giles JA.

2 GILES JA: A truck owned by the first respondent and driven by the second respondent ran into the back of a car in which the appellant was a passenger. In proceedings brought in the District Court the appellant claimed damages for a variety of injuries alleged to have been suffered in the accident and to have brought quite extensive disabilities. The respondents admitted breach of a duty of care owed to the appellant, but disputed the extent of injury suffered in the accident and the extent of disability.

3 Gamble ADCJ noted that the appellant tendered medical reports from her general practitioner, four orthopaedic surgeons, a neurologist, a dentist and a physiotherapist, and that the respondents tendered reports from an orthopaedic surgeon and a physiotherapist. Her Honour said that “All the reports are in agreement that Mrs Louizos suffered soft tissue injury only in the accident, described in several of the reports as ‘musculo ligamentous strain of the cervical and lumbar spine’.” Her Honour said that X-ray and CT scan of the appellant’s cervical spine showed no abnormality, and that neurological tests were also normal. After some discussion of the appellant’s treatment and employment history, her Honour found that the appellant “suffered soft tissue injury for which she has required little treatment apart from exercise, physiotherapy, and analgesics”.

4 Gamble ADCJ then addressed the assessment of damages for non-economic loss and past and future economic loss. She concluded her reasons -

“[The appellant] has suffered some loss due to the accident. She has incurred pain and suffering which is likely to be permanent and to require constant attention to proper exercise and posture. Her neck pain and her need for continuing dental treatment are not insignificant for a young woman, particularly one with the responsibility of caring for young children. There are some restrictions on her ability to find suitable employment although, fortunately they will not limit her choices very significantly.”

5 Her Honour immediately stated her award of damages, as corrected in the manner shortly indicated being -

“1. Past medical and related expenses 7,342

2. Non economic loss
of most extreme case [sic] 3,000

3. Past economic loss
No award -

4. Future economic loss
Cushion 10,000

5. Future loss of superannuation
No Award -

6. Future medical expenses
$10 per week for 53 years
5% life expectancy tables 9,890
Total $30,232”


Her Honour then gave a verdict for $30,000.

6 The damages stated in the reasons themselves included $20,500 for “non economic loss 15% of most extreme case”, with total damages of $47,732 and a verdict for $48,000. When the reasons were published they were accompanied by an “amended schedule of damages” in the terms I have set out.

7 The appellant appealed, by leave, in relation to the assessments of damages for non-economic loss and past and future economic loss, and consequentially loss of superannuation. She sought a re-assessment of damages in this Court, alternatively a new trial on the issue of damages.

Non-economic loss

8 After she had stated her finding as to the appellant’s injury (para 2 above), Gamble ADCJ said -

“There is evidence in the Rehab One report (Ex A Corinne O’Connor) of real improvement following a three month exercise program at Fitbodz Gymnasium. Mrs Louizos gave evidence that she has continued the stretching exercises at home and that she is able to obtain relief from any continuing pain with massages by her husband and non-prescription analgesics. Dr Drew Dixon assesses her permanent loss of function at 15% (Ex A 6/11/00). I would put it no higher and am not satisfied on the balance of probabilities of any more significant impairment of the capacity to enjoy life under s 79A of the Motor Accidents Act 1988 than 15% of the most extreme case.”

9 Section 79A of the Motor Accidents Act 1988 prescribed a maximum amount that could be awarded for non-economic loss for “a most extreme case”, and, by a table, the proportion of the maximum amount to be awarded as damages for non-economic loss according to the severity of the non-economic loss as a percentage proportion of a most extreme case. The table started at 15 per cent of a most extreme case, and below that no damages could be awarded for non-economic loss. From her Honour’s reference to Dr Dixon’s assessment and the two statements of damages, her Honour adopted a percentage proportion of 15 per cent.

10 Section 68 of the Motor Accidents Act defined “non-economic loss” to mean -

“(a) pain and suffering; and
(b) loss of amenities of life; and
(c) loss of expectation of life; and
(d) disfigurement.”

11 The appellant submitted that her Honour erred in her assessment of damages for non-economic loss in two respects. First, she took a percentage proportion of “the most extreme case”, not “a most extreme case”, contrary to cases placing emphasis on the use of the indefinite article such as Southgate v Waterford (1990) 21 NSWLR 427 and Dell v Dalton (1991) 23 NSWLR 528. Secondly, by paying regard only to impairment of the capacity to enjoy life, broadly reflective of loss of amenities of life in para (b) of the definition in s 68, she left out of account pain and suffering as a component of non-economic loss. In the result, it was submitted, there was under-assessment of the severity of the appellant’s non-economic loss and of the damages awarded in that respect.

12 The respondents submitted that, despite some infelicity in expression, it was tolerably clear that her Honour had paid proper regard to the legislative scheme for the assessment of damages for non-economic loss. They said that in the discussion preceding the finding as to the appellant’s injury she referred to matters going beyond those which might be encompassed within impairment of capacity to enjoy life, including those relevant to pain and suffering, and that on the facts there was no significance in referring to “the most extreme case” as opposed to “a most extreme case”. They pointed out that there had been specific reference to the appellant’s relief from pain immediately before the reference to impairment of capacity to enjoy life.

13 It may be that the use of the definite article rather than the indefinite article could be seen as a slip, without effect on reasoning. It is more difficult to put aside the reference to impairment of capacity to enjoy life. Her Honour may have intended to encompass both loss of amenities of life and pain and suffering, but the words did not well indicate regard to pain and suffering. Nor did the percentage proportion of 15 per cent fit well with what was said at the conclusion of the reasons, that the appellant had incurred pain and suffering which was likely to be permanent and that her neck pain was not insignificant. The appellant’s life expectancy was well over 50 years. Without better explanation, and there was none, the use of the concept of impairment of capacity to enjoy life suggests failure properly to have in mind the components of non-economic loss in making the assessment of its severity and of the damages to be awarded in that respect.

Economic loss

14 Gamble ADCJ said as to past economic loss -

“I am unable to agree with the Plaintiff’s submissions in respect of her past economic loss. I am not satisfied by the evidence that there was any substantial incapacity for work following the accident. She did not consult her general practitioner until six weeks after the accident, apparently preferring physiotherapy and chiropractic treatment and there is no evidence of any time lost from work in the nine months after the accident. Although Mrs Louizos gave evidence that she had considerable treatment during the five month period she took off work (March – September 1998), there was no evidence of that treatment before the court. The most consistent period of treatment appearing in the evidence is the three month exercise program undertaken between March – June 1999, a programme organised by the insurers, AMP (Ex A, Rehab One report). Mrs Louizos has worked part time, for her husband’s firm and at QPL Personnel, since September 1998, leaving her employment for the birth of each of her children. I am unpersuaded that any loss of earnings in this period was due to incapacity brought about by injuries received in the accident.”

15 At the time of the accident the appellant was working for Corporate Express selling office furniture and equipment. She worked five days a week from 8 am to 5 pm, and her work involved car travel for 90 per cent of her time and computer entry for 10 per cent of her time. The work gave her the use of a car for private purposes, and was described by her Honour as “most lucrative”.

16 The appellant continued to work at Corporate Express for nine months following the accident. She then stopped work for five months, and then took up casual employment as a clerical assistant in her future husband’s firm. She married and had a child, and then worked for a time doing telesales. She left that work to have her second child, and was not working at the time of trial.

17 The appellant claimed in respect of the periods of non-earning or diminished earning after she left Corporate Express, allowing for the time off work for the births of her children. Her Honour declined to award damages for past economic loss not because, although there was diminution in the appellant’s earning capacity, the diminution in earning capacity was not causative of her non-earning or diminished earning. Her Honour was not satisfied that there was any substantial incapacity for work following the accident, meaning that there was no diminution in earning capacity of any substance. The major reason for this, in her Honour’s view, lay in the treatment obtained and more particularly not obtained following the accident.

18 The appellant submitted that her Honour was in error in the core sentence “Although Mrs Louizos gave evidence that she had considerable treatment during the five month period she took off work (March – September 1998) there was no evidence of that treatment before the Court”. The respondent submitted that the sentence was substantially correct. In my opinion, what her Honour said was significantly astray.

19 The evidence from the appellant to which her Honour was referring was her answer to a leading question in examination in chief -

“Q. After you went off work did you obtain further treatment including physiotherapy, attendances upon Dr Kochan and also various treatment and investigations organised by Dr Yannakos [sic], a neurologist, to whom Dr Kochan your GP sent you?
A. That’s correct.”

20 There was general evidence of physiotherapy from Lewisham Sports Clinic, not specific as to the five month period, but equally there was nothing in the evidence properly controverting physiotherapy during that period. From the medical reports, the appellant saw her general practitioner Dr Kochan on 11 June 1998 and “in view of the persistence of her symptoms” was put onto anti-inflammatory medication and referred to a neurologist, Dr Yiannikas. An X-ray and a CT scan of her cervical and thoracic spine were performed. The neurologist examined the appellant twice and recommended further investigations in order to decide how best to treat the appellant. He advised physiotherapy and thoracic outlet exercises, and began the appellant on a different medication “to see if we could help her pain and paresthesia”. In August 1998 the appellant saw a dental surgeon, who diagnosed tempero-mandibular joint dysfunction and advised treatment by an occlusal splint. All these matters were evident from the reports, and plainly enough the leading question was directed to them and the answer to the leading question was intended to refer to them.

21 Perhaps it can be debated whether the attendances on the general practitioner, the neurologist and the dental surgeon were treatment. But the facts of the attendances, with symptoms warranting referral to a neurologist, of the investigations, and of the advices in relation to physiotherapy, medication and corrective intervention were supportive of impact from the accident on the appellant’s functioning. It was not correct to regard the appellant as having exaggerated by giving evidence of treatment which was not otherwise evidenced, as her Honour appears to have done, when it was clear enough that by her answer the appellant meant that she had had the “treatment” evidenced in the relevant reports. Nor was it correct to reason from the absence of “treatment” of some other kind to no or little effect of the accident on the appellant. The attendances over the five month period should have been recognised and given weight. The fact-finding as to the appellant’s loss of earning capacity was flawed in these respects.

22 In other respects the fact-finding may be questioned. It was correct that the appellant did not consult her general practitioner until six weeks after the accident, but she did have “treatment” indicative of an effect of the accident upon her. She did not lose time from work with Corporate Express, but she gave evidence that she had just started with Corporate Express and wanted to persevere to try to keep the job, that she did complain of her discomfort to fellow employees and complained to Corporate Express that she was having difficulty doing her work although not suggesting that she could not continue to work, and that in the end she left Corporate Express because she could not tolerate the pain any more. While bearing upon the extent of incapacity, these matters called for more careful consideration than they received.

23 The importance of careful consideration was underlined by the appellant’s further submission that the lack of satisfaction as to substantial incapacity for work was inconsistent with what her Honour later said about permanent and significant pain and suffering, and more particularly with her Honour’s findings as to restrictions on suitable employment. The restrictions were referred to in the concluding passage of the reasons earlier set out, and the findings were stated when her Honour addressed damages for future economic loss. Her Honour said -

“In the future it is likely Mrs Louizos will be able to work, either full time or part time, in a career of her choice. The only limitations on her employment are that she should avoid work involving long hours driving a car and she should avoid computer keyboarding work entailing a static neck position. Her ambitions in sales and clerical work should be able to accommodate these restrictions.”

24 Her Honour found that the appellant should avoid the two activities which made up her work at Corporate Express. How, the appellant asked, could a finding that the appellant could not do what she had to do when working at Corporate Express not mean loss of earning capacity translating into economic loss when she had to leave Corporate Express?

25 The submissions at this point extended to future economic loss. In that context, the respondents answered that the appellant acknowledged that her discomfort was intermittent, so that so long as she took care there was no real interference with her lifestyle. There were many jobs, the respondents said, which she could do if she was careful. That is not an answer to the inconsistency in the reasons. In my opinion there was inconsistency, such that the effective finding of no substantial past incapacity for work is difficult to accept.

26 I have set out the entirety of what her Honour said when addressing damages for future economic loss. The result was a cushion of $10,000. There are, of course, cases in which future economic loss can not sensibly be calculated, even with the estimation underlying a purported calculation, although the well established usual course of calculation via a weekly loss of earnings can and should generally be used. But why her Honour thought a cushion was appropriate, and why a cushion of $10,000, was not explained.

27 Perhaps more important, what her Honour meant by “Her ambitions in sales and clerical work should be able to accommodate these restrictions” was not explained. The appellant had told vocational investigators that she was looking for full time work preferably in the sales and office areas. She agreed with the proposition that the jobs she would look for “would involve sales, public relations, that sort of thing”. She said that it was “a matter of finding a job that suits me and my injury”, and that minimal driving was necessary. There was evidence of rates of pay for jobs of that kind, all less than the appellant’s remuneration from Corporate Express. The conclusion that the appellant suffered a loss of earning capacity with economic consequences was all but dictated by the evidence, and was not answered by reference to possible employment in sales or clerical work. That her Honour’s reasoning was that the appellant’s discomfort was intermittent, so that so long as she took care there was no real interference with her lifestyle (including employment), is not consistent with her findings as to restrictions on suitable employment, or with the concluding passage of the reasons, and can not be accepted as the explanation for what she said.

Overall

28 The reasons of Gamble ADCJ are brief. Sometimes brevity is a virtue, but in this case it is not. While it is conceivable that more full reasons may have enabled a different complexion to be put on the matters of which the appellant complains, in my opinion there is substance in the complaints. Whether or not individually compelling, taken together they demonstrate that the assessment of damages was not properly addressed and can not stand.

Reassessment?

29 The appellant submitted that this Court could and should reassess damages. The appellant said that the essential findings were there, that she had suffered soft tissue injury with the effects stated at the conclusion of the reasons and that it was necessary to avoid work involving driving a car and computer keyboarding. From this the appellant suggested a calculation of damages to a verdict in the order of $250,000 in place of the verdict below.

30 The respondent submitted that this Court could not properly reassess damages, and that a new trial would be necessary. In my opinion that is correct. I do not think that bare findings can be extracted from her Honour’s reasons and used for reassessment. The findings in the reasons are flawed and internally at odds. They are also inadequate, not least because they do not enable this Court to place the personal and economic effects on the appellant of her injuries along the spectrum available on the evidence. As a sufficient example, there was not unanimity in the medical reports, and the appellant’s evidence and the view taken of the appellant is important to the resolution of the divergences between them. Regrettably, only in a new trial can there be proper assessment of damages.

31 I propose the orders -

(1) Appeal allowed;

(2) Set aside the verdict and judgment for the plaintiff and order that there be a new trial;

(3) Respondents pay appellant’s costs of the appeal;

(4) Costs of the hearing before Gamble ADCJ be in the discretion of the judge conducting the new trial;

(5) Respondents have a certificate under the Suitors Fund Act if otherwise qualified.

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