Michael v Stephens

[1992] QCA 459

IN THE COURT OF APPEAL	[1992] QCA 459
SUPREME COURT OF QUEENSLAND

Appeal No. 160 of 1992

BETWEEN:

DEBRA GAY MICHAEL

(Plaintiff) Respondent

AND:

RONALD JAMES STEPHENS

(Defendant)

AND:

FAI GENERAL INSURANCE COMPANY LIMITED

(Defendant by Election) Appellant

The President
Mr Justice McPherson

Mr Justice Derrington

Judgment of the Court delivered on the

18th day of December 1992

APPEAL DISMISSED WITH COSTS
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 160 of 1992

Before the Court of Appeal

The President
Mr Justice McPherson

Mr Justice Derrington

BETWEEN:

DEBRA GAY MICHAEL

(Plaintiff) Respondent

AND:

RONALD JAMES STEPHENS

(Defendant)

AND:

FAI GENERAL INSURANCE COMPANY LIMITED

(Defendant by Election) Appellant

JUDGMENT OF THE COURT

Delivered the 18th day of December 1992

MINUTE OF ORDER:	Appeal dismissed with costs.
CATCHWORDS:	Appeal against awards for pain and suffering and future economic loss in favour of 26 yr old with slight permanent injury to spine - wh Judge's assessment of percentage loss of body function justified on evidence - wh causative of any error in award.
Counsel:	J.A. Griffin, Q.C. for the appellant. S. Williams, Q.C. with him T. Williams, for the respondent.
Solicitors:	Messrs. Baker Johnson & Partners for the appellant. Messrs. Payne Butler & Lang for the respondent.

Hearing Date: 24th November 1992
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 160 of 1992

BETWEEN:

DEBRA GAY MICHAEL

(Plaintiff) Respondent

AND:

RONALD JAMES STEPHENS

(Defendant)

AND:

FAI GENERAL INSURANCE COMPANY LIMITED

(Defendant by Election) Appellant

JUDGMENT OF THE COURT

Delivered the 18th day of December 1992

The appellant appeals against two of the components of the award of damages for personal injury to the respondent, namely, the sum of $38,000 for pain, suffering and loss of amenities of life and $80,000 for future economic loss.

The accident occurred on 2 December 1987 when the respondent was twenty-six years of age and judgment was given on 10 July 1992 when she was thirty-one years. The relevant findings as to her injuries were as follows:

"The plaintiff pleaded that she suffered concussions; fracture of the body of the T12 and L1 vertebrae; multiple skin lesions; abrasions and bruising; a neck injury; abrasions to the left shoulder; bruising of the abdomen.

The plaintiff was taken to the Bundaberg Hospital in intense pain. Apart from her abrasions and bruises, x-rays established a crushed fracture of T12, L1. The collision which the plaintiff's vehicle had been in was severe. Her vehicle had been pushed from behind into the path of an oncoming truck. Examination revealed marked bruising from the seat-belt to much of her anterior chest. There were contusions to much of her trunk soft tissue.

Initial treatment was conservative, the plaintiff being given analgesics and bed rest. The pain from her vertebral fractures was very bad for some weeks, but when that began to ease she was encouraged to commence the rehabilitation of her paraspinal muscles with extension exercises. At the three week stage she was fitted with a Taylor brace and mobilised. After that it was clear that she had also sustained soft tissue injuries to her neck and that she had aggravated a pre-existing lumbar spine problem.

The plaintiff's recovery was, from then on, slow and extremely painful. She experienced much further pain from her middle and lower spine and from her shoulders. she suffered frequent headaches. Despite this, the plaintiff walked and swam regularly to rehabilitate her trunk muscles.

She underwent physiotherapy. In time her Taylor brace was changed to a lumbar corset. She kept all this up for some months, but she continued to notice mid dorsal pain. Activity also provoked much low back pain which moved past her buttocks and down her legs. Unfortunately, despite all her efforts, the plaintiff's symptoms remain significant to this day though there has been improvement. Her condition has stabilised as follows:- she has recovered a fuller range of movement of her neck and x-rays showed no bony abnormality. What she sustained was an acute ligamentous strain to her cervical spine.

However, she still has a significant neck disability which will not improve. Her central back pain has settled, but she does and will continue to experience ongoing and regular pain in the right loin and lower abdominal quadrant which is of a referred nature from the thoracic spine.

The fractured vertebral bodies are well healed, but considerably deformed. The condition in her lower lumbar region has responded to physiotherapy and she has been brought back to much the same condition there as she was in before the subject collision.

Percentage estimates of spinal/body loss attributable to the subject collision varied among the orthopaedic specialists.

Dr Anderson for the defence distinguished lower back degenerative changes and thought that due to the subject collision she had lost 5 per cent of her total body function.

Dr Curtis saw her as having lost 10 per cent of the use of her spine, two and a half per cent due to her neck injury and seven and a half per cent due to her thoracic spinal injury. Dr Robinson thought her loss to be 5 per cent of the whole body from the cervical spinal injury, 19 per cent total body from the lumbo-dorsal fractures and associated soft tissue damage.

Having regard to the present manifestation of her symptoms and their permanent nature, I find that due to the defendant's negligence, the plaintiff has lost 10 per cent of her total body function."

In his briefer assessment of the effects of the injuries upon the respondent's earning capacity he also said:

"This loss of body function has imposed a very severe loss of this plaintiff's earning capacity. She was a very efficient laboratory technician

and already highly regarded in a relevant local industry. She had a bright future in her profession. When she returned to work she found that she could not cope with the standing and stooping which her vocation requires. She had to give it up and that loss to her earning capacity is permanent.

Since that time, the plaintiff has been employed by her father in real estate sales, but she would not hold that position on her merits. The plaintiff's father has kept her on, despite the fact that she tires easily and cannot perform as well as a normal active real estate representative can perform."

The permanent disability suffered by the respondent and her continuing economic loss resulted from the fractures of the vertebral T12 and L1.

The judge went on to compare the respondent's earning capacity as it was before the accident, and as it appeared at trial, and arrived at separate amounts to compensate for economic loss past and future; for pain, suffering and loss of amenity; and for various other lesser items of loss or damage.

It is evident that in assessing the extent of the respondent's physical disability as "10 per cent of total body function", he departed from the expert medical evidence adduced at the trial. Three of the four medical experts (Drs Anderson, Curtis and Fraser) gave their opinions that the respondent's spinal injuries have produced a loss of function equivalent to 5 per cent of the whole body, while the assessment of the fourth expert, who was Dr Robinson, placed the loss of function at 29 per cent.

The judge did not adopt Dr Robinson's estimate. On appeal it was not suggested that he did. Plainly, however, he did not directly adopt the estimate of 5 per cent made by the other three medical witnesses.

Given these premises, it is a puzzle to know how he could have fixed on 10 per cent as the percentage disability sustained. A possible explanation is that he mistook a passage in the evidence of Dr Curtis, who spoke of a 10 per cent loss of function of the spine. However, Dr Curtis went on to agree that as "a very rough approximation" the figure he mentioned was equal to 5 per cent of the whole body.

If that is not the explanation, then the figure of 10 per cent must have been chosen at random. The trial judge was not entitled to adopt that figure in the absence of expert evidence justifying such an assessment. There was no evidence of that kind here.

The use of percentage estimates of disability for assessing the quantum of damages for personal injuries has on occasions been criticised. Provided, however, that such estimates are referred to only as a guide that is considered along with other evidence in arriving at the proper amount of compensation to be awarded, there can be no reasonable objection to their use.

Here, however, the trial judge adopted an estimate of percentage disability that cannot be identified in any evidence adduced at trial, and which he would not have been entitled to work out for himself. Even if on the material before him it was possible to say that the expert estimate of 5 per cent was too low, it would not have been open to the judge to use his own unaided impression to increase it to 10 per cent. Except in obvious or unusual cases, percentage estimates of physical disability are something that must be founded on expert opinion.

It may be that in the present case he considered the 5 per cent evidence to be too low in the light of other evidence at the trial. If that is what he thought, he did not say so, nor did he explain how he arrived at 10 per cent. The figure he chose appears on first impression to have influenced his assessment of the economic loss awarded.

This appears from the passage from his reasons that is set out above, where he said, "This loss of body function has imposed a very severe loss on this plaintiff's earning capacity". In speaking of "this loss", he was plainly referring to the statement in the preceding sentence, which was that "the plaintiff has lost 10 per cent of her body function".

Nonetheless, we are not convinced that this error had a significant operative effect.

It cannot justifiably be said that his error caused him to have any misapprehension of the real nature and extent of any of the respondent's actual disabilities. He understood the nature and degree of her symptoms and their effect upon her. The appellants point, while accurate as far as it goes, has no substance.

Learned counsel for the appellant then complained that the award made no allowance for a pre-existing disability which obliged the respondent to wear a lumbar corset off and on until the time of the accident. This had caused her some considerable trouble some nine months earlier. It is true that no reference was made to these matters in this passage relating to loss of earning capacity, but His Honour had earlier implied his continued cognisance of her former condition because in referring to her lower back condition he spoke of her restoration by physiotherapy to "much the same condition there as she was in before the subject collision."

Further he obviously accepted the respondent as a credible witness and it was her uncontested evidence that, with the support provided by the lumbar corset, she was unrestricted in her employment prior to the accident. There was no evidence that her pre-accident condition would have led to any difficulties in the future. It would seem that it was not mentioned again because it had no influence upon the result; but manifestly it would have been better if it had been mentioned. No operative error is shown on this issue.

The next ground of complaint relates to the weekly rate of $200 which His Honour adopted for discounting on the 5 per cent tables for ten years as the basis of his assessment. An attempt was made to demonstrate that a comparison between the respondent's actual earning rate at the date of the accident as a laboratory technician and her subsequent rate of earnings as a real estate agent in her father's business produced a figure much less than that adopted, and it was added that this did not take into account her prospects of increased earnings as a real estate agent in the future with an improving market. However a true comparison between the respondent's best year of earnings since the accident and those at the date of the accident, if both are reduced to a net figure, reveals a loss clearly in excess of $200 per week. In addition allowance must be made for the prospects if she had not been injured, improving her position and consequently her income from her former work. This must at least offset any doubtful prospects of her present prospective advancement.

Unfortunately, again these factors were not adverted to expressly in the reasons for judgment, but if they are all properly applied, in the result the assessment is not shown to be in error on this point.

Because all the various arguments directed by the appellant at the assessment of loss of earning capacity are not made out, that ground must fail. The other ground of the appeal refers to the award of $38,000 for pain, suffering and loss of the amenities of life, as to which little argument was addressed to this Court except in respect of His Honour's erroneous reference to the percentage loss of total body function. This has already been discussed, and it remains only to re-consider his assessment in the light of the loss actually experienced by the respondent.

The principal features are apparent in the passage from the reasons for judgment quoted above. By way of completion of the picture it should be noted that His Honour also observed that whereas the respondent was formerly a very active person who followed many of the usual vocations which young people pursue, she is now quite limited in that regard and this has diminished her enjoyment of life.

As it will have been seen, the respondent suffered quite a deal of pain immediately after the accident and during her convalescence. At the time of the trial, she continued to suffer persistent daily pain and disability which causes her to have limited endurance. During the convalescence, she also suffered some depressive reaction to what had befallen her and she still feels upset at the loss of her career and of the benefit of her training and qualifications. There is some apprehension of difficulty during a future pregnancy and there is already a risk of degeneration in the relevant part of her spine. She is a young person and will be obliged to suffer her pain and discomfort for many years.

Her loss of the enjoyment of the activities of young people is somewhat mitigated by the fact that she is no longer young and has the responsibilities of married life. Nevertheless she was an active person and will probably have to live a more restricted life than would have been permitted to her in the absence of these injuries, even with the antecedent disability which she already carried.

While the award for this component is high, it is not so high as to merit interference, particularly in the context of the total size of the award.

The appeal should be dismissed with costs.