Loxton v New South Wales

NEW SOUTH WALES COURT OF APPEAL

CITATION: LOXTON v STATE OF NEW SOUTH WALES [2002] NSWCA 194

FILE NUMBER(S):
40482/01

HEARING DATE(S): 17 June 2002

JUDGMENT DATE: 26/06/2002

PARTIES:
Danae Loxton by her next friend Debby Loxton - Applicant
State of New South Wales - Respondent

JUDGMENT OF: Sheller JA Campbell AJA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 1439/99 Parramatta

LOWER COURT JUDICIAL OFFICER: Delaney DCJ

COUNSEL:
W P Kearns SC/B Hughes - Appellant
A C Bridge SC - Respondent

SOLICITORS:
Napier Keen Solicitors - Appellant
Hicksons - Respondent

CATCHWORDS:
DAMAGES - injuries sustained by school student - challenge to trial Judge's findings on damages - distinction between general damages and special damages - future economic loss/ reduced earning capacity - medical expenses - new trial rejected

LEGISLATION CITED:
District Court Rules 1973
Supreme Court Rules 1970
Suitors' Fund Act 1951

DECISION:
1 Appeal allowed
2 Set aside the verdict and judgment of Delaney DCJ of 6 June 2001
3 In lieu thereof verdict and judgment for the plaintiff in the sum of $199,542.43 made up of general damages of $125,000; Griffiths v Kerkemeyer $18,043.48; agreed out of pocket expenses $1,498.95; future economic loss $40,000; future medical expenses $15,000; together with interest on 50 per cent of the amount awarded for general damages at the rate of 5 per cent and interest on the amount awarded for past care at 5 per cent up to 2 June 2000 and thereafter at 10 per cent to the date of judgment
4 The respondent to pay the appellant's costs of the appeal but to have a certificate under the Suitors' Fund Act 1951 if so entitled
5 The judgment to date from 6 June 2001.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40482/01
DC 1439/99
SHELLER JA
CAMPBELL AJA

LOXTON v STATE OF NEW SOUTH WALES

The appellant appeals against the award of damages made by Judge Delaney on 6 June 2001. His Honour found the respondent liable in negligence for injuries suffered by the appellant and that conclusion was not challenged.

On 30 April 1996 the appellant was injured while present as a primary school student at Arcardia Public School, a school for which the respondent is responsible. The appellant was aged 11 when she was injured after she and other school students were part of a human pyramid which collapsed. The appellant was left by the accident with a lifelong condition of neurogenic bladder and bowel, and with an enduring sleep problem. She had to carry an impairment of gait and lower limb function and suffered a substantial impact on her self confidence.

Judge Delaney awarded the appellant damages in the sum of approximately $131,500, comprised of the following:

-              general damages of $85,000;
-              interest on past general damages of $4,000;
-              future medical expenses of $1,000;
-              damages for reduced earning capacity of $40,000;
-              agreed out-of-pocket expenses of $1,498.95.

The appellant appealed on the grounds that the damages awarded were manifestly inadequate in that the trial Judge had failed to have regard to the appellant's age and the evidence supporting the contention that her disabilities would be permanent and require ongoing medical treatment. It was argued that a separate amount for home care assistance should have been awarded. Also, the award for reduced earning capacity was also challenged. The appellant alleged that the trial Judge had failed to consider the extent to which her disabilities would restrict earning capacity upon her entrance into the workforce.

At trial, after extensive attention was given to the issues of negligence and liability, there was a paucity of evidence to assist the trial Judge in any calculation of damages.

HELD (per Sheller JA, Campbell AJA concurring):

In assessing damages in this case the court was required to look at the future of a person with a life expectancy in the order of 60 years. That exercise had to be engaged in so as to compensate the appellant for future economic loss and medical expenses and to determine general damages: see the judgment of Heydon JA in State of New South Wales v Jane Moss (2000) NSWCA 133.
The myriad of possibilities that would have directed the appellant's life if she had not been injured and that might now direct it in consequence of her disabilities emphases that there is an element which is more guess work than estimation in determining the appropriate award of damages. In these cases, the exercise is imprecise and the parameters are wide. As such, it is no easy task for an appellant to challenge the award at first instance of damages as insufficient: see Chaplin v Hicks [1911] 2 KB 786; Foster v Tyne and Wear County Council [1986] 1 All ER 567.
The appellant was entitled to be awarded damages representing the value of services rendered for her by her mother: as per the principles established in Griffiths v Kerkemeyer (1977) 139 CLR 161. While the trial Judge did not explicitly acknowledge what proportion of the general damages represented an award for past care, it appears that the hours and rates stipulated in the particulars were applied. This meant that for pain and suffering and loss of amenities or enjoyment of life the appellant was left with a verdict of approximately $67,000.
The award for general damages, omitting any amount for past care, did not give sufficient weight to the extent of the appellant's injuries and the fact that her bowel and bladder problems would be lifelong. The appropriate award for general damages additional to any allowance for past care is $125,000, with interest divided on the basis of 50 per cent for past and 50 per cent for future general damages.
The amount awarded for future medical expenses was, on its face, unrelated to the future medical expenses likely to be incurred by the appellant as a result of the accident. In the absence of evidence, an appropriate award is $15,000.
The appellant's challenge to the trial Judge's award for future economic loss cannot be sustained. The uncertainties of the future are such that, while this Court may be of the opinion that a larger award would not have been beyond the range, the amount awarded was not below the range available to the trial Judge.
While argument was heard as to whether a new trial limited to damages should be ordered, a powerful reason against such a course is that it would give the appellant an opportunity to put before the court more evidence than it chose to put before the original trial Judge. A new trial would be disadvantageous to the respondent, particularly given that it would not be the consequence of any fault in the way the respondent presented its case. The parties chose to present the damages case before the trial Judge on very limited evidence and it is not inappropriate that they be required to adhere to that in this Court.
Legislation cited:
District Court Rules 1973
Supreme Court Rules 1970
Suitors’ Fund Act 1951
Cases cited:
State of New South Wales v Moss (2000) NSWCA133
Graham v Baker (1961) 106 CLR 340
Paff v Speed (1961) 105 CLR 549
Jones v Schiffmann (1971) 124 CLR 303
Foster v Tyne and Wear County Council [1986] 1 All ER 567
Griffiths v Kerkemeyer (1977) 139 CLR 161
ORDERS
1. Appeal allowed;
2.Set aside the verdict and judgment of Delaney DCJ of 6 June 2001;
3.In lieu thereof verdict and judgment for the plaintiff in the sum of $199,542.43 made up of general damages of $125,000; Griffiths v Kerkemeyer $18,043.48; agreed out of pocket expenses $1,498.95; future economic loss $40,000; future medical expenses $15,000; together with interest on 50 per cent of the amount awarded for general damages at the rate of 5 per cent and interest on the amount awarded for past care at 5 per cent up to 2 June 2000 and thereafter at 10 per cent to the date of judgment;
4.The respondent to pay the appellant’s costs of the appeal but to have a certificate under the Suitors’ Fund Act 1951 if so entitled;
5.The judgment to date from 6 June 2001.

**********

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40482/01
DC 1439/99
SHELLER JA
CAMPBELL AJA
Wednesday, 26 June 2002

LOXTON v STATE OF NEW SOUTH WALES

Judgment

SHELLER JA:
Introduction
On 30 April 1996 the appellant, Danae Loxton, who sues by her next friend, her mother, Debby Loxton, was injured while present as a primary school student at Arcardia Public School, a school for which the respondent, State of New South Wales, is responsible. The appellant, who was aged 11 at the time, was born on 3 October 1984. She and other students were part of a human pyramid they were making on the school oval. She was injured when the pyramid collapsed. She sued the respondent.
The proceedings came before his Honour Judge Delaney in the District Court in March 2001. His Honour reserved and gave his decision on 6 June 2001. He found the respondent liable in negligence for the injuries the appellant suffered. That conclusion has not been challenged. Judge Delaney awarded the appellant damages in the sum of $131,498.95. This comprised general damages of $85,000, interest on past general damages of $4,000, $1,000 for future medical expenses and $40,000 for reduced earning capacity. Out of pocket expenses were agreed at $1,498.95. The appellant appeals on the grounds that the damages awarded were manifestly inadequate in that the trial Judge had:

Failed to have regard to the serious nature of the injury, the appellant’s age and the evidence supporting the contention that the disabilities would be permanent;
Failed to consider the extent to which the disabilities would restrict the appellant’s earning capacity upon her entering the workforce;
Failed to allow a separate amount for home care assistance and improperly included this in his award of general damages; and
Failed to have regard to the volume and weight of medical evidence which suggested that the appellant would require significant ongoing medical treatment.
Reasons for judgment

Judge Delaney’s reasons for judgment show that there were live and difficult questions about breach of duty and causation, which his Honour decided in the appellant’s favour. About damages the trial Judge said:
“On the balance of probabilities I find that the plaintiff developed a condition of conus medullaris [lower end of the spinal cord] following someone falling on her back on 30 April 1996 and that she has since that time had the injuries and disabilities and disadvantages in life to which I have already referred in some detail from the various reports.
The plaintiff herself when she gave evidence about her condition did so in a matter-of-fact way which suggested to me understatement. Nevertheless she gave in detail what occurred and how her life had changed. Her evidence has been corroborated as to the nature and extent of her disabilities and the effect that they have on her life.
The out-of-pocket expenses were agreed at $1,498.95. I am satisfied that the physical injuries and disabilities together with the psychological consequences referred to by Dr Morse and Miss Moore indicate that the plaintiff has permanent disabilities which will affect her everyday life for the rest of her life. The effects where she has to keep away from people the fact that she has the need to self-catheterise on a regular basis could not but be devastating to a young lady at her time of life, expecting to go on to a bright future. It is more likely than not that the plaintiff will need to have time off for treatment from time to time in the future. It is because of the problematic nature and uncertainty of the plaintiff’s future lost earning capacity that Mr Little suggested that this should be a case for a cushion or buffer (The State of New South Wales v Moss (2000) NSWCA 133, judgment of Heydon JA).”
Judge Delaney said he had taken into account the fact that the plaintiff, during the course of her time at home after the incident, had a significant need for help from her mother who gave her such assistance. He said he had taken those matters into account when considering the question of general damages but gave no indication of the amount allowed for this care. Nor did his Honour give any indication of the basis of his assessment of $1,000 for future medical expenses beyond saying it was a “global sum”.
Past care
In her third amended statement filed pursuant to Pt 9 r 27 of the District Court Rules 1973 the plaintiff claimed for home care services for the period from 30 April 1996 to 2 June 2000 in an amount of $18,043.48 and stipulated precise times of 7 hours per week from 30 April 1996 to 1 June 1996, 12 hours and 45 minutes per week from 2 June 1996 to 30 April 1997 and 4 hours 15 minutes per week from 1 May 1997 to 2 June 2000. The only oral evidence given about any contribution from the plaintiff’s mother was as follows:
“Q.         Was your mother doing anything to assist you during the first few weeks or month or two that you were at home? A. I’m not sure, I think mum may have actually been doing the catheters for a while. I’m not sure whether I learnt them as soon as I got out of hospital or not. She was always helping me getting dressed after showers, making sure I didn’t fall over in showers or fall out of the chair. She was basically doing everything I couldn’t because I was sort of limited and she was always walking around behind me and that when I’m going up stairs, and she still does.
…
Q.           Did that involve your mother in having additional laundry and the like for clothes? A. Well a little bit yes because I maybe did it [wet myself] once a week if not more.
Q.           Over the first two months when you got out of bed would you ever get out of bed without your mother being there to assist if necessary? A. I’m not quite sure. I can’t really remember.
Q.           What if you got up in the night to go to the toilet for instance, would you go on your own in the first two months? A. First two months, I’m not really quite sure whether I did or I didn’t.
Q.           Are you able to make any sort of estimate of time per day that your mother was on hand to assist you in the first two or three months that you were at home? A. She was there most of the time.
Q.           Had your mother been working prior to your accident or was she not working at that time? A. I’m not quite sure whether she was already working or not working. She either was working there at the time or started working after the accident because she did the night shift at –“
The appellant’s mother did not give evidence.
Mr Quinlivan, who appeared at the trial for the defendant, after addressing on liability, said:
“I have little to say about the issue of damages other than what your Honour will see from the evidence of Drs Yeo and Jones that the girl has been entirely self sufficient now for some years so that those components of the plaintiff’s damages case which relate to assistance from the mother would be curtailed so far as compensation is concerned within the first couple of years after the incident has occurred. I don’t apprehend that I would have anything else to say about the bits and pieces of the special damages in the case.”
When he came to address on damages, Mr Little SC, who appeared for the plaintiff, engaged in an interchange with the trial Judge which followed after a discussion about the want of evidence of any future career for the plaintiff and went as follows:
“LITTLE: Exactly and as I’m asked of course, I’m quite perfectly confident to leave all those matters to your Honour together with the Griffiths v Kerkemeyer. In my submission the claim for Griffiths v Kerkemeyer is a fairly conservative one. This lady had significant --
HIS HONOUR: You don’t want to say anything more about that, do you?
LITTLE: I won’t say anything more about that your Honour.
HIS HONOUR: Especially in view of what Mr Quinlivan has said and I think the plaintiff has given her evidence about that. If I get to it, I won’t come to any conclusion other than that which appears in the particulars.”
His Honour was no doubt flagging that first he had to consider whether the plaintiff succeeded on liability.
It cannot be known whether the trial Judge allowed the whole of the $18,043.48 or part only of it and if so, what part.
The submissions to which I have referred about this aspect of the claim indicate to me that neither party gave the trial Judge sufficient assistance in assessing damages. The trial Judge observed to counsel that it was “not a small case”. He found that the appellant suffered permanent disabilities which would affect her everyday life so long as she lived. I propose to refer to some of that evidence. None of the appellant’s medical reports was challenged by cross-examination. Judge Delaney accepted that all the physical symptoms of which the plaintiff complained and which were referred to in the medical reports were in fact symptoms which she experienced following the accident.
Pain and suffering, loss of amenities or enjoyment of life
Immediately after the accident the appellant experienced pins and needles in the bottom of her feet. She had fallen over at least once while she was still at school after the accident. On that day she was admitted to Hornsby Hospital. By the time she reached Hornsby Hospital she was having difficulty with her capacity to urinate. She was x-rayed and tests were done to determine the extent of her reflexes and her sensitivity to touch. On 2 May 1996 she was transferred to the Royal Alexandra Hospital for Children (the New Children’s Hospital Westmead) (RAHC). A permanent catheter was inserted. An MRI scan of her spinal cord demonstrated increased signal in the T2 weighted images in the distal spinal cord which were thought to represent oedema. The appellant was initially managed with bed rest. She was unable to pass urine on removal of the indwelling catheter. By 31 May catheterisation was being performed five times a day. This caused the appellant pain and discomfort. The appellant was able to perform the procedure herself. Her neurogenic bowel was managed with second daily microlax enemas. On 5 May she commenced active mobilisation. In the third week there was a deterioration in power. After further bed rest and intensive inpatient physiotherapy including hydrotherapy she was able to walk with the aid of Canadian crutches. There was some external rotation at the hip, particularly on the right, and footdrop. She was able to walk independently but her gait pattern was consistently better with the use of the sticks. She was discharged from RAHC on 1 June 1996.
The appellant was seen on 1 July 1996 by Dr Russo who reported that catheterisation occurred four times a day and that although the appellant could push urine through the catheter she had only been able to start passing urine on several occasions. Only once had she had a good stream to start with and mainly had had small dribbles of urine. She still had some weakness in her lower legs particularly left dorsiflexion. She had only recently been able to walk without walking sticks or crutches and had had two falls, in particular while turning rather rapidly. Two weeks previously she had had a urinary tract infection. She attended Hornsby Hospital for her supply of catheters which was made through PADP. She had two small bowel accidents.
When reviewed on 15 August 1996 by Dr Grattan-Smith, a paediatric neurologist, she reported one severe episode of back pain approximately six weeks previously which may have been an anxiety attack. She continued to have hydrotherapy. Her bowels were irregular without Parachoc. She still had to catheterise herself intermittently. There was definite improvement in her motor function. At times she had become depressed and had received counselling. Dr Grattan-Smith reported:
“On examination she was her usual high spirited self. She walked on a slightly wide base. She was able to walk on her toes but was better on the right than the left. She was not really able to walk on her heels... (Danae] certainly has improved and it is hoped that this will continue.”

On 2 December 1996 Dr Russo reported that when seen on 22 November the appellant was experiencing some stiffness of her left leg particularly in the morning. There had been a general improvement in her mood and quality of life since she had become more active. He described the neurogenic bladder as of the lower motor neurone type.
On 10 July 1997 Dr Graham Smith, a paediatric urologist, reported that the appellant had chronic urinary retention and was currently controlling her bladder with clean intermittent catheterisation 4-5 times a day. She was occasionally wet with running or straining, but was otherwise doing very well.
On 6 August 1997 Dr Russo reported that another problem area was with the appellant’s bowels. She was usually continent except for times when she had not emptied her bowels and had to run or there was some excitement. This caused her to pass some stool at inappropriate times. This had only occurred rarely in the past. She was aware of the problem. Dr Russo observed that the appellant had had some difficulty with her walking.
On 20 April 1998 she was seen at RAHC. She was still intermittently catheterising five times a day and wore pads at school. She had not had any urinary tract infections for twelve months. She had had very few episodes of soiling in recent months. She was independently mobile and reasonably active. Her principal concern related to her inability to sleep with the sleep deprivation affecting her school performance. She was unable to walk on her heels but had a stable tandem gait. She had altered light touch sensation and clawing of the toes on her left foot.
On 15 November 1999 she was seen by Dr Mary-Clare Waugh, a staff rehabilitation specialist. The doctor reported that the appellant managed her neurogenic bladder with four or five catheters per day. There had been two urinary tract infections in the last twelve months. Her neurogenic bowel was managed by regular manual removals. She was currently in Year 10 at Galston High School, was a good student and was coping well. She was keen not to miss any time off from school and as a result was arranging for treatments and investigations during the school holidays. She was not tripping or falling as much but continued to have reduced sensation in her lower limbs. Her right ankle continued to be at particular risk of severe sprain due to her inability to know where her joint was in space. She continued to have difficulties with getting to sleep despite having tried a number of strategies including medication. She walked with a flat footed gait and had difficulty squatting due to her tight TA’s bilaterally.
On 1 February 2000 she was seen by Dr Watson, a consultant neurologist. He noted that there had been considerable improvement in lower limb function since her discharge from hospital and both her walking and running were almost back to normal. She was able to play friendly sports games. When she ran she developed some pain in her legs. She still experienced frequent ankle sprains. Her major ongoing problems were with bladder and bowel function which continued to require regular self catheterisation. She could often manage to open her bowels voluntarily on the toilet but sometimes needed to evacuate her bowels manually in the shower and if her bowels had not been emptied, she sometimes experienced faecal incontinence during sport. She had fairly major emotional and psychological problems as a consequence of her injury. She still had considerable problems with sleep. Her performance at school was average. On examination, Dr Watson observed that there were no definite abnormalities of gait though the appellant’s walking did appear slightly slow and clumsy. She was unable to stand on her heels. The history indicated that the appellant suffered significant injury to her lower spinal cord conus medullaris in the accident. The doctor gave the following opinion:
“She continues to experience significant disability. It is now almost four years since the injury and it is likely that her current disability will continue into the long term. She has relatively mild impairment of gait and lower limb function, but moderately severe problems with bladder and bowel functions. Although I did not explore the psychosexual aspects of the injury in any detail, it is likely these sphincter problems will have a substantial impact on her self confidence, especially in a sexual context.
In terms of ongoing treatment, it is highly likely that she will continue to require regular self catheterisation in the long term (I am unable to provide a costing for this). It is also likely that she will experience occasional urinary tract infections and there is also the possibility of her developing more severe infection, such as pyelonephritis or septicaemia and there is also the possibility (of) her developing impairment of renal function.”
The doctor was of the view that she would be likely to require ongoing treatment for Achilles tendon shortening with home exercise, physiotherapy and, possibly, repeat plastering.
On 3 May 2000 she was seen by Associate Professor Jones, a senior specialist in the Department of Rehabilitation Medicine at Prince Henry Hospital, whose reports the respondent relied on. Professor Jones expressed difficulty in determining a neurological impairment and said that the sequence of events following the injury were “unusual and her ultimate requirement for urinary catheterisation and manual evacuation of the bowel is difficult to explain”. He regarded her need for urinary catheterisation as most remarkable. He said:
“I believe her to be independent in personal care and to have the potential to be independent in the activities of daily living. Matters relating to the apparent neurogenic bladder and bowel will need determination but in any event she will have the potential to be employed in a clerical job.”
On 25 May 2000 the appellant was seen by Associate Professor Yeo who in a letter to the appellant’s solicitors of 26 May observed that she had improved sufficiently to walk without the aid of callipers and crutches and was using serial plaster of Paris casts to help avoid contractures as a result of persisting weakness in both right and left lower limbs involving mainly the feet and ankles. She was prone to blisters on her feet as a result of disturbed sensation. She had become independent in her personal activities of daily living but was troubled with stress incontinence and had to wear incontinence pads when attempting to play any sport. She was also prone to faecal incontinence. Numbness persisted in both feet and she had to manually empty the paralysed neurogenic bowel on a daily basis. She suffered from insomnia. She described occasional involuntary spasms in muscles in the lower limbs.
Professor Yeo said that the medical history confirmed that the patient had suffered a contusion injury to the conus medullaris. She had regained significant motor power and sensation but had evidence of permanent loss of spinal cord function and damage to the emerging nerve roots particularly at the L5 and sacral nerve levels. This was a mixed upper motor neurone and lower motor neurone lesion with some sparing of sensation and motor power and reflex activity below the level of the main lesion. The clinical signs suggested that a degree of further recovery might occur with regard to partial bowel and bladder control.
“Hopefully Miss Loxton will be able to reduce her self catheterisation procedure to twice a day (morning and evening) and be able to empty her bladder with some straining and pressure during the day while at school or during tertiary education and future employment. Most probably she will always have difficulty in control of bowel and bladder and will never have normal function of these organs. Fortunately she has recovered normal sensation in the region of the perineum and apparently within the vagina and this will assist her in having normal sexual relationships. I have encouraged the patient to be continued to be reviewed regularly by her treating urologist with urodynamic studies every six months at least for the next two years and for her to continue with ultrasound studies of kidney and bladder every two years thereafter. She should also continue to be seen by her spinal rehabilitation specialist on a yearly basis for advice regarding lifestyle and coping with her permanent disabilities. She will remain prone to episodes of incontinence of urine and faeces as well as fatigue and mild spasticity in the lower limbs. I would encourage Miss Loxton to continue a regular physical therapy program provided through hydrotherapy in her own small domestic size heated swimming pool. Hydrotherapy will allow her to maintain appropriate strength in the partially paralysed lower limbs and in both upper limbs as well as to avoid weight increase and ensure adequate efficiency in abdominal and spinal muscles. She will eventually learn to drive her own automatic motor vehicle. With appropriate completion of training and tertiary education Miss Loxton will most probably re-enter employment for which she is suited in open industry. She will continue to require equipment provided through the Paraplegic and Quadriplegic Association of New South Wales which will include sufficient sterile catheters for her daily use. She should also be encouraged to use disposable gloves and an appropriate lubricant for bowel management. Miss Loxton will not require any nursing assistance nor domestic assistance but will require two hours of handyman’s assistance per week in view of her difficulty with balance, particularly at heights as a result of the partial paralysis involving both right and left legs.
I discussed with Miss Loxton the benefits of a lumbar support pillow which should be provided at a cost of $50 which will require replacement every two or three years. She should continue to see her local doctor for review every three months for examination and urine tests.”
On 15 June 2000 Dr Waugh reported:
“Danae has had a lower spinal cord injury that is manifesting itself as a neurogenic bowel and bladder, weakness and spasticity of her local limbs, predominantly her ankles. As this is now nearly four years post injury it is unlikely that Danae is going to experience any further recovery of function. Danae will continue to require bladder catheterisations to empty her bladder and manual removals and/or enemas and/or regular medication to ensure the normal evacuation of her bowel. She may well have ongoing episodes of bowel or bladder incontinence due to the weakness and inability to control her bowel or bladder. Danae has an abnormal gait which is likely to continue. She tends to swing her left leg out through mid stance whilst walking to clear her foot. She is likely to require intermittent stretching programs to maintain a reasonable range of movement particularly of her left ankle joint. In the future she may decide to undertake surgery to her left ankle to achieve a more functional position, however, this would then need to coupled with a splint worn on her left ankle to ensure foot clearance whilst walking. Ongoing difficulties with balance, coordination and risk of falling will continue.
The issue of sexual function has not been addressed to date, however, it is likely that Danae will have some alteration of sensation in this area that will have a direct impact on her sexuality. The issue of continence and the impact of this on sexual functioning has also not been addressed but is likely to have an impact.
Danae has permanent damage to her lower spinal cord causing a neurogenic bowel and bladder and weakness in her lower limbs, particularly at the ankle.”
The appellant was seen by Dr Morse, a consultant psychiatrist, who reported to her solicitors on 10 July 2000. Dr Morse observed that the appellant had to be very careful of where she went and what she did because she can “leak” which is embarrassing and distressing.
“If she is going to do anything requiring any major physical effort or in particular social or other situations she has to catheterise herself. Understandably this is not an easy thing to live with but she is coming to terms with it and does what she has to do. She is prone to recurrent bladder infections which require antibiotics though she has not had one for some time.”
He said that the appellant found that if she stood for a prolonged period her legs ache and bending, lifting or twisting is restricted because of feelings of weakness and concern about incontinence if she does anything too vigorous. She said she only runs if she has to because she tends to “leak”. After being severely down and sad and low for the first few months after discharge from hospital she had over time with her mother’s help and the help of others experienced a gradual improvement in her state as far as her emotional condition was concerned. Her major cause of distress and concern was her inability to sleep. She knows at school after a sleepless night she does not feel very good and is unable to cope. She said she missed school because of her physical state, her tiredness and lack of sleep and this put her behind and she was concerned about this. She wanted to go on to Year 12 if possible. “She has no idea of what she wants to do when she leaves school. She realises there will be certain occupations and activities she cannot carry out but had no particular plans to carry out a certain career path.” She said she got on very well with her mother who was supportive and helpful and that it was because of her that she felt she had done so well since the terrible accident.
Dr Morse was of opinion that following the accident the appellant suffered a definite adjustment disorder with markedly depressed mood. She had quite remarkable improvement in her emotional state, an attitude due in part to her own determination to see the best of it and to be as active as possible with the support of her mother and others. She had quite marked sleep disturbance which undoubtedly was due to concerns and worries about the effect of the accident on her life. Dr Morse said that this sleep disturbance was a cause of ongoing distress to her and saw it as a long term problem. She would benefit from counselling and may in the future need specific psychiatric therapy. There was no doubt that the support of her mother had played a very major part in bringing about the remarkable recovery, particularly in regard to her emotional state, that had occurred. There was no doubt that the stresses caused by the accident and her ongoing state were major causes of her taking on heavy smoking. It was not possible to say what the impact on her schooling and academic achievement would be both of the absences from school because of her state and the effect it had on concentration and general cognitive functioning. The effect on self esteem and self confidence particularly in concerns about performance academically due to her inability to pass urine and other physical features were difficult to judge but must have some impact. Dr Morse said:
“There must be some long term impact on her ability to follow certain careers. I am not expert enough to be able to outline these but there are certainly physical activities she will be unable to carry out and there will be certain situations where, because of her bladder and bowel problems, she will not be able to deal with adequately.
There will be an on-going effect on her ability to carry out sporting and other recreational activities for the rest of her life because of her physical state, there will always be the marked effect on social activities because of bowel and bladder problems.
I have no doubt there will be difficulties in establishing normal relationships with males for the obvious physical reasons and Dr Watson has referred to possible problems in sexual activity due to the bowel and bladder problems. At this stage she has a very positive and I think the right approach regarding these matters, however, it must be said that with perhaps rejecting and unfortunate attitude of males, an unfortunate experience early in the relationships, she could suffer a loss of confidence and regard to these relationships.”
Dr Morse saw that she would have ongoing problems in the area of sleep, panic attack and concerns about her academic achievements. He believed that as time went by these feelings would possibly become worse particularly under stress of late adolescence and competitive academic climates. She would be vulnerable to emotional problems and difficulties in the future because of the effect of the accident.
Dr Marilyn Moore, an adult, child and family psychiatrist qualified by the respondent, saw the appellant on 4 October 2000. She reported that the appellant complained of panic attacks about five or six times per year generally at night. She had not experienced a panic attack before the accident. She had difficulty with sleep frequently spending hours lying in bed having trouble getting off to sleep. As a result she may feel tired at school. She was sometimes still frustrated by experiencing physical pain and the need to have further physical therapy such as during recent school holidays when a plaster was applied to her left lower leg to improve dorsa-flexion. She was not sexually active and described some anxiety that “things down there won’t be normal”. The doctors had told her that it would feel normal but she did not think that they knew this for sure. She described herself as “an average student” who enjoyed art, film and video and science. She planned to continue to Years 11 and 12. She was hazy about her future plans beyond this. The hospitality industry attracted her, for example, waitressing, and she hoped that she would be able to work in this area. She was not interested in doing further study although the thought of counselling as a career had some appeal. She expressed some anxiety about her own future, particularly from a psychosexual perspective. She did not seem to be exaggerating her difficulties, rather she seemed to play them down.
Dr Moore considered that the appellant in the period following the accident fulfilled diagnostic criteria for adjustment disorder with anxiety and depression:
“Given the nature of her injuries which are well documented in the records of the New Children’s Hospital, particularly her limited mobility which caused quite a significant alteration in her lifestyle, the need to self-catheterise and manually evacuate her bowel and her fears about her future health, her reaction is an understandable one”.
Dr Moore thought her insomnia to be more of the primary insomnia pattern “which takes the form of a virtually lifelong pattern of poor sleep, which may be triggered by a period of stressful events, then has a life of its own.” Dr Moore said:
“Overall her academic performance has not otherwise been negatively impacted by the accident. From a psychiatric perspective, I do not think her fitness for employment has been affected. The need to catheterise 4 - 5 times a day would limit some of her occupational options. A report about suitable occupations should be obtained from a rehabilitation physician.”
Apparently this has not been done. Dr Moore regarded her prognosis as good. However, if she neglected treatment and did not do the exercises required to control panic then her prognosis would be adversely affected. There was an increased likelihood of developing depression because of the early loss of her father, which in females is correlated with subsequent depressive illness and because of the physical limitations, which may have an impact on the establishment and maintenance of relationships particularly with males. The appellant’s father had been killed in a work related accident when she was eight.
Professor Jones provided a review of his assessment report of interview and examination of the appellant on 3 May 2000. He observed that there would be a need for urological review from time to time and perhaps each two or three years in the longer term and it would be appropriate for her to have a review through a rehabilitation facility at one to two yearly intervals. She did not require hands on physical therapy or any therapies to her lower limbs. Professor Jones believed that she would be independent in personal care and in the activities of daily living. Judge Delaney had difficulty with what precisely Professor Jones thought about the matter.

Mr Kearns SC, who appeared for the appellant, identified the heads of ongoing disability, the result of the injuries to the appellant’s spinal cord suffered in the accident as those related to neurogenic bladder and bowel, to motor and sensation sequelae, to psychological effect and to sleep disturbance.
The appellant gave evidence about the manual evacuation of her bowel in the shower which required her to take a shower for half an hour to forty minutes. This meant that when she went to a school camp from a Monday to a Wednesday she used her bowels on the morning of the Monday but not again until she returned home on the Wednesday night. She said that her mother was always running around doing things for her including running down urine samples once every three months unless the appellant got a feeling that she was getting an infection. She said:
“I get her to send a urine sample down, plus she gets up at night if I need a wee bag, stuff like that.”
The appellant said she tended to get blisters on her feet quite badly. She would like to have been normal like everyone else. She would have loved to have been able not to have to use a catheter but she had resiled herself to the fact that she had to and tried to not to think about it. She did not have a boyfriend. Asked if she avoided contact with boys because of her condition she said: “A little, yeah”. Asked if she had any concerns about her long term future of being in a relationship because of her condition she said: “Yes a little considering I hide it from everybody and nobody actually knows and I am worried that everything is not going to go as normal as it should.”
She said that on occasions she did not fall asleep until 3.30 or 4 am. By the end of the day she was normally walking around like a zombie sort of thing. She could do much heavy lifting or anything and stayed away from things that would risk her falling or getting pushed into things. “I don’t go to many concerts or anything for the sheer fact that I can’t go anywhere near big crowds.” Asked if she had any idea what areas of employment she wanted to go into she said: “I’d like to do something involving like people, like doing tourism or something like that, hospitality or something like that.”
Assessment of Damages
In assessing damages in this case the court was required to look to the future of a person with a life expectancy in the order of 60 years. That exercise had to be engaged in so as to compensate the appellant for future economic loss and medical expenses and to determine general damages. Judge Delaney referred to the judgment of Heydon JA in State of New South Wales v Jane Moss at paras 53 and following. That judgment contains a thorough overview of how a plaintiff’s entitlement to damages for loss of earning capacity should be undertaken by reference to future economic or financial loss and refers to many authorities on the topic.
Judge Delaney found that the appellant suffered a loss of earning capacity which led to future economic loss and that she would, as a result of the accident, incur medical expenses in the future. These conclusion were not challenged. But Mr Bridge SC, who appeared for the respondent, emphasised the paucity of evidence to assist in any calculation of damages.
In Graham v Baker (1961) 106 CLR 340 at 347 Dixon CJ, Kitto and Taylor JJ said:
“….an injured plaintiff recovers not merely because his earning capacity has been diminished but because the diminution of his earning capacity is or may be productive of financial loss.”
In Paff v Speed (1961) 105 CLR 549 at 558-9 Fullagar explained the distinction between “special damages” and “general damages”, the former awarded in respect of monetary loss actually suffered and expenditure actually incurred. His Honour said, at 559:
“ ‘General damages’ on the other hand, are, of their very nature, incapable of mathematical calculation, and (although the expression is apt to be misleading) commonly very much ‘at large’. They are at large in the sense that a jury has, in serious cases, a wide discretion in assessing them. Also general damages may be assessed not with reference to any limited period, but with reference to an indefinite future. Damages may be awarded for ‘pain and suffering’, and such damages are assessable for past, present and future pain suffering. But here calculation is obviously impossible, and damages for pain and suffering should clearly be regarded as ‘general’ and not ‘special’ damages. In fact, the question of general damages is generally, I think, put to the jury under three heads (1) ‘economic loss’, (2) loss of ‘amenities’ or ‘enjoyment of life’, and (3) pain and suffering.
‘Economic loss’ may include expenditure (for, eg medical expenses) which it is shown that the plaintiff will probably incur in the future as a result of his injuries. But the major item of a claim under this head is usually put as ‘loss of wages’ or ‘loss of income’. It would be more accurately described as ‘loss of earning capacity’ … Actual loss of wages or loss of income will have been already taken into account in assessing special damages, and what the plaintiff must receive in respect of the future is compensation for total or partial incapacity to earn income. The whole system on which general damages are awarded is open to criticism, but the direction to a jury to award a lump sum under each of the three heads is too well established to be now challenged, and the awarding of periodical payments subject to review is, of course, quite impracticable.
The usual method of proving damages under the first head is by calling evidence to show what the plaintiff could probably have earned during the rest of his life if he had not been injured and what, if anything, he is now capable of earning.”
It is no doubt correct to say that, in reflecting in damages the myriad of possibilities that would have directed the appellant’s life if she had not been injured and that might now direct it in consequence of her disabilities, there is an element which is more guess work than estimation. In Jones v Schiffmann (1971) 124 CLR 303 at 308 Menzies J noted that in Chaplin v Hicks [1911] 2 KB 786, where the jury awarded the plaintiff £100 damages for the loss of a chance to win a prize, the Court of Appeal, in refusing to disturb this verdict, said that, had the jury chosen to award 1 shilling, that verdict would not have been disturbed either. This both demonstrates that the exercise is imprecise and indeterminate and also that the parameters are wide. It is no easy task for an appellant to challenge the award at first instance of such damages as insufficient. In Foster v Tyne and Wear County Council [1986] 1 All ER 567 at 570 Lloyd LJ said:
“The very fact that the approach must necessarily be so speculative means, of course, that the occasions on which this court will feel justified in interfering with a judge’s assessment will be few and far between, for there is no established range or standard against which to measure the judge’s award.”
As Professor Luntz says in Assessment for Damages for Personal Injury and Death, 4th ed (2002) at 5.3.4, when speaking of young children, “it is in fact impossible to make an accurate individual assessment, since it can never be known what the future would have held for this plaintiff but for the injury.”
On the principles expounded in Griffiths v Kerkemeyer (1977) 139 CLR 161 the appellant was entitled to be awarded damages representing the value of services rendered for her by her mother. The trial Judge found that such services had been rendered but made no finding about the length of the period in which or for how long on a daily basis they were rendered. Both the evidence and the submissions recorded were perfunctory. However, the trial Judge had material from the medical reports to which I have referred which suggested that the mother’s services to the appellant came in the form of her being there to help when required day in day out and 24 hours a day. The particulars stipulated hours and rates. The rates were derived from material provided in a letter dated 31 July 2000 by the Macquarie Nursing Service. The total cost of care claim accorded with that body’s calculation. It was admitted without objection as part of Exhibit A, the plaintiff’s medical reports. It was open to the trial Judge to conclude that the amount as claimed should be awarded. The passages that I have quoted suggest to me that this was the course his Honour adopted. If he did so, that conclusion could not, in my opinion, be challenged by the respondent. In the result this meant that for pain and suffering and loss of amenities or enjoyment in life the appellant was left with a verdict of just under $67,000.
In my opinion, such an award does not give sufficient weight to the fact that this young woman was left by the accident with a lifelong condition of neurogenic bladder and bowel to be evacuated daily in the way she had described, with an inability to take part in the sort of outdoor activities that she enjoyed in the way she had previously done and with an enduring sleep problem. She had to carry an impairment, albeit mild, of gait and lower limb function and suffer a substantial impact on her self confidence, especially in a sexual context. It is likely she will experience occasional urinary tract infections and there is a possibility of her developing more severe infection. She may well have ongoing episodes of bowel or bladder incontinence and will have continuing difficulty with her left ankle and her balance and coordination. The appellant claimed that the amount for general damages, omitting any amount for past care should be increased to a sum between $150,000 and $200,000. In my opinion, this is outside the range. I would assess general damages additional to any allowance for past care at $125,000 and divide the interest on the basis of 50 per cent for past and 50 per cent for future general damages. She should be awarded $18,043.48 for past care. Interest should be allowed on that up to the end of the period for which it is claimed, 2 June 2000, at a rate of one half of 10 per cent. From that date up to the date of judgment at first instance interest should be allowed at 10 per cent (compare Schedule J to the Supreme Court Rules 1970).
With due respect the amount awarded for future medical expenses of $1,000 is on its face unrelated to the future medical expenses likely to be incurred by the appellant as the result of the accident. The items referred to in the evidence were:

four visits annually to a general practitioner,
two visits annually for two years to a urologist and thereafter once every two years, assuming no complications,
one visit a year to a spinal rehabilitation specialist,
two visits a year for two years for urodynamics studies,
one visit every two years from May 2000 for ultrasound studies of kidney and bladder,
antibiotics for urinary tract infections with the possibility of more severe infections and renal impairment,
self catheterisation for life,
gloves and lubricants,
nuclear cystograms and glumerolo filtration rate estimations once every two years,
psychiatric therapy,
treatment for ankle, and
a special pillow at a cost of $50 every two or three years,
this over an expected life span of about 60 years.
It is right to say that the evidence of the cost of these treatments was slight indeed. The appellant’s claim was for an amount from $30,000 to $40,000. In the absence of evidence, but accepting as is inevitable that these costs are likely to be incurred, I think an appropriate award is $15,000.

The trial Judge awarded $40,000 for future economic loss. He was faced with an appellant who was unable to give evidence of any particular plans for her future. To my mind the uncertainties of the future are such that while I am of opinion that a larger award would not have been beyond the range I am not persuaded that the amount awarded was below the range available to the trial Judge. Accordingly, I would not interfere with that award.
During the course of the hearing of the appeal there was some discussion which emanated from the bench about whether a new trial limited to damages should be ordered. That is a course that the Court will strain to avoid if possible. A powerful argument against such a course is that it gives the appellant an opportunity, which in my opinion is not justified, to put before the court more evidence than her advisers chose to put before Judge Delaney. The cost would be not inconsiderable. A new trial would, it seems to me, be very disadvantageous to the respondent. Moreover it would not be the consequence of any fault in the way the respondent presented its case. I have come to the conclusion on the material available that the Court is able to pass upon the adequacy of the damages awarded and to adjust them where they are inadequate. The parties chose to present the damages case before the trial Judge on very limited evidence and, in my opinion, it is not inappropriate that they be required to adhere to that in this Court.
Orders
I propose the following orders:
1. Appeal allowed;
2.Set aside the verdict and judgment of Delaney DCJ of 6 June 2001;
3.In lieu thereof verdict and judgment for the plaintiff in the sum of $199,542.43 made up of general damages of $125,000; Griffiths v Kerkemeyer $18,043.48; agreed out of pocket expenses $1,498.95; future economic loss $40,000; future medical expenses $15,000; together with interest on 50 per cent of the amount awarded for general damages at the rate of 5 per cent and interest on the amount awarded for past care at 5 per cent up to 2 June 2000 and thereafter at 10 per cent to the date of judgment;
4.The respondent to pay the appellant’s costs of the appeal but to have a certificate under the Suitors’ Fund Act 1951 if so entitled;
5.The judgment to date from 6 June 2001.
CAMPBELL AJA: I agree with Sheller JA.

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LAST UPDATED: 27/06/2002

[2002] NSWCA 194

26 June 2002

Key Legal Topics

Areas of Law

Negligence & Tort

Civil Procedure

Legal Concepts

Damages

Appeal

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