Mildren, E.R. v Nichols, A.V

DAMAGES - Adequacy - Future pain and suffering - Loss of earninq

capacity - Desirability of future operatlon - Chance of success -

Operation in f a c t occu r rma before appeal.

ELIZABETH ROBYN MILDREN	V	ALAN VINCENT NICHOLS
No. N.T. G2 of 1386

EVA'M', SHEPF-4P.D and PINCUS JJ

SYDNEY	i
4 JULY 1986
!
!

JJI THE FEfiERAt. COURT OF 4IJSTR

fJ0RTHD.N TERRITORY DISTRICT	Ii	LEGISTRY	)	No. NTG 2 of 1986
GENERAL DICTISION

O N APFEAL PROM THE SUPREME

COURT OF THE NORTHERN

TERRITORY OF AUSTRALIA

BETWEEN :	!
ELIZABETH ROBYN MILDREN

Appellant

AND :	-
ALAN VINCENT NICHOLS

Respondent

C 0 F;4M :	Evatt. Sheppard, Fincus JJ
DATE OF ORDER:	.1 July 1356

WERE ORDER MADE: Sydney

I'IINUTE OF ORDER

THE COURT ORDERS

TMT:

1. The appeal be allowed.

I .

2 . The

amount of

the

Judgment

entered

favour

the

appellant in the Supreme Court of

the Northern Terrltory be

-Jarled

by substituting for the amount

of $ 3 2 . 7 2 8 . 3 0 ,

the

amount of $47,728.30.

3 .

The respondent pay the appellant's costs

of the appeal.

Note: Settlement and entry or orders 13 dealt wlth in Order

26 of th? Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

)

NEW SOUTH WALES DISTRICT REGISTRY

N.T.G. 2 of 1986

GENERAL DIVISfON	)
ON APPEhL F R O M THE SUPREME COURT
OF THE NORTHERN TERRITORY OF
AUSTRALIA

BETWEEN:

ELIZABmH ROBYN MILDREN

Appellant

AND: ALAN VINCENT NICHOLS

Respondent

CORAM:

ENATT,

SHEPPARD, PINCUS

JJ.

4 JULY

1986

REASONS FOR JUDGMENT

THE COURT:

This is an appeal by a plaintiff from the Supreme

Court of the Northern Territory in

action in which, judgment

by default having been obtained, the Court had only to assess

damages. The plaintiff, whose right shoulder was held to have

been injured in

a motor accident on

17 November 1978. was awarded

damages totalling $32,728.30.

At the hearing of the appeal, counsel challenged

two

components of the award

only, namely a sum of $10,000 awarded in

respect of future pain and suffering and loss

of amenities, and

sum of

$5.000

in respect of

"loss of earning capacity in the

fllture". Although the attack

on the judqment

the learned

trial judae is thus limited, it is necessary to examine the facts

A S a

whole to determine whether the appellant received, as she

claimed, less than her due.

The appellant was born on 28 January 1950 and was thus

3 6 at the date

judgment, which was delivered on 21 February

1986. Before the collision we have mentioned, the appellant had

iollowed a number

of occupations: nursing. journalism and then

work a5

a debt-collecting clerk

with a firm of solicitors.

She

ceal;rrl that work at the beginning of 1976 and married her second

husband, a practising barrister, in May

1977.' In

March 1978 a

male child of that marriage was born, and on

17 November of that

year. as we have mentioned, there occurred the collision	which
qave rise to the action.

appears

that

the

shoulder

injury

which,

the

learned trial judge

held, was sustained in the collision. did not

immediately manifest itself. Indeed, his Honour was apparently

somewhat troubled by inconsistencies in the evidence

the

plaintiff as

to the time

at which she first had right shoulder

pain after the accident, but after a careful examination of the

evidence, his Honour expressed himself as satisfied that the

shoulder symptoms should be causally linked to the accident.

His Honour held,

in effect, that the

first presentation

symptoms occurred about

a month after the accident, but

I .

nothing of	any significance happened until early the followinq
year when,	while carrying her baby son, the plaintiff suffered

pain in the shoulder. She

had, according to the findings, other

isolated bouts of trouble

with the shoulder in

1979, and was

treated by drugs and physiotherapy. One of the drugs, Naprosyn,

caused her to have serious abdominal trouble on two occasions.

once in 1980, and once

in 1984. After the second. she ceased to

take Naprosyn and that trouble ceased.

The learned

t,rial judge held that on overseas trips in

1979 and

again

in 1983 the plaintiff suffered pain in the

shoulder as a result of carrying luggage, and on the latter

occasion. the enjoyment of her holiday was spoiled by the pain.

However. his

Honour also found that the plaintiff continued to

play tennis twice a week after the accident

for “a couple of

years”, and at about 1980 began

to learn sailing and bought

a 20

foot fixed-keel yacht. She sailed competitively until about

1983.

Speaking, apparently,

of the period

from the date of the

accident until 1983.

his Honour said:

“Throughout the whole of this earlier period

I find

that the plaintiff was hardly affected

all

except on the specific occasions I have mentioned when the pain in her shoulder was appreciable but

by no means

excruciating or disabling

any

significant degree.”

His Honour held that the plaintiff was "able to cope adequately

with what disability there was

. . . ' I .

The evidence was that in J u l y

1980 the plaintiff began

to work for

her husband as a legal secretary, and she was still

so working at the date of trial.

His Honour held that the

plaintiff "coped satisfactorily" until early 1984 and that. until then, "her lifestyle was not seriously disrupted except for the

specific episodes of

which she gave evidence". In 1984 and 1985.

however, the plaintiff, whose symptoms were worsening, sought

further medical advice and was given a number

cortisone

injections. She said

there

were

five, but

the

doctor

who

administered them gave evidence

of only three. Whatever

the

precise

number.

only

some

had

beneficial

effect.

The

consequence

each

such

injection

was a short

period

considerable pain followed

relief for some months. At the

date of trial, the plaintiff's shoulder pain was quiescent, the

plaintiff having recently had a cortisone injection. To use the

plaintiff's words, "At the moment things are good and I can cope

a lot better than before

I had the injection."

So far as this recital has

gone, there is, we think,

nothing

the facts

which

presently

the

subject

contention.

It was his Honour's treatment of the plaintiff's

future prospects which evoked complaint from senior counsel for

the appellant.

The learned trial judge

said, speaking of two

orthopaedic specialists who gave evidence, that both agreed that

5 .

the time would come when an operation would be likely to

performed on the plaintiff's right shoulder. His Honour said in

his reasons:

"The prospects

of success of that operation are

fairly high. Both doctors agree that success can

be rated at between 05 to 90 percent ..."

Senior counsel for the appellant submitted that his Honour was in

error in making the finding just quoted. Of the two specialists

referred to, one only (Dr. Baddeley) spoke of 85% to 90% chance

of success.

The other, Dr. P.L. Fry, said the procedure in

question

had "a certain

notoriety"

and

"got

a rather bad

reputation", but that "the results are much better these days and

the answer is simply yes, in the right hands treating the right

person in the right hospital

at the right time you can certainly

improve things, yes".	i
Making full allowance for the disadvantage inherent in our not having seen and heard the witness, we cannot concur with
I

the view his Honour expressed as to the effect

of this evidence,

namely that

Dr. Fry agreed that the prospects of success of the

operation were 85% to 90%.

The point is of some importance,

for

three reasons. Firstly, his Honour said he accepted

Dr. Fry's

evidence; secondly, senior counsel for the appellant informed

us,

with the

consent of

counsel

for

the

respondent.

that

the

plaintiff had in fact had

the operation in question, in April

1986; thirdly, his Honour's view of the level

of compensation as

to future economic and other losses was much

influenced by his

I .

1 opinion relating to the outcome of operative treatment.

As to the

last

point,

his Honour

found

that

the

operation would "alleviate the plaintiff's pain and suffering

and,

to a

large measure, put right her present disabilities".

The evidence on which that was presumably based was a statement

by Dr. Baddeley to the effect that after surgery the plaintiff

would probably be

"as she is now, in this good phase, with only

minor restrictions". The reference to "good phase" seems clearly

to have been prompted by the fact that the plaintiff

had, at the

date of trial, the benefit of

a period of

after cortisone

treatment. as mentioned above. At

a later point,

his Honour

expressed the view, basing himself on the evidence of Dr.

Baddeley,

that

after

the

operation

the

plaintiff

would

restored to a permanent level of disability of the order of

10%.

Dr. Baddeley said in his evidence

that, at her worst when seen by

him, the plaintiff's disability had been of the order of

25%.

The	information supplied by counsel of course removed

any

uncertainty

whether

the

operation

would

become

necessary and.

to our minds, tended somewhat to

strengthen the

appellant's case. We were not told

what the operation's effect

was: perhaps that was not certainly known at the date of the

hearing before us.

7 .

The	aareed statement that the operation took place

should be

treated as if evidence on the point had been admitted

on	appeal. We should then consider the whole of the facts

presentlv available. as

was done in Curwen

v. James (1963) 1

W.L.R. 748 where a Lord Campbell's Act plaintiff remarried after

judgment, Mullholland

v. Mltchell E19711 A.C. 666 where the

plaintiff had to move

to a nursinq home after judgment. McCann v.

Sheppard (1973) 1 W.L.R. 540 where the plaintiff died after trial and before appeal, and lastly in Government Insurance Office of

New South Wales v. Maher	(1981) 55 F.L.R. 187, a decision of this
Court.

The case last mentioned was similar to Curwen v. James

and the Court took the plaintiff's remarriaqe into account,

resulting in a

substantial reduction of the damages. Apparently

such a course may be

f0lhWed. despite the fact that

an appeal to

this Court is not by way	of rehearing:	Duralla Ptv. Ltd. v.
Plant (1984) 54 A.L.R. 29.

The learned trial judqe allowed a sum of

$5.000 loss of

earninas on the assumption (which has proved to be correct) that

the plaintiff would have an operation on her shoulder. but made

no further allowance for future economic

loss.

His Honour held

that, on the basis of

Dr. Fry's evidence. the plaintiff, after

the operation, would

"have her earning capacity restored

to her".

As we have mentioned, we cannot read

Dr. Fry's evidence as

accordinq to the operation such a hiqh prospect

of a

happy

[ _

outcome as his Honour held.

Dr. Fry said that if the plaintiff

obtained a job that "demanded repetitive and fast typing for long

periods then she would undoubtedly have problems".

He gave no

assurance	that	such problems would disappear after operative	I
treatment.

Looking

at the matter broadly, and giving all proper

weight to the advantages the learned judge had in assessing the

plaintiff's disability, it seems to us that the appellant has

made good her point that

his Honour was in error in

his treatment

of future economic loss.

He allowed nothing for reduced earning

capacity in the

future, other than for a

specific anticipated

period of disability while recuperating from the operation. At the lowest, some allowance should have been made for the risk that the operation would not be successful. Apart from that.

even on the basis that the operation was very likely to be

successful, we do not think that his Honour was right in treating

the plaintiff as

having no compensable loss of earning capacity.

Althouuh she had the advantage of receiving

handsome salary

while working as her husband's secretary, her counsel

argued, and

think it is right. that

the

findings the plaintiff's

shoulder

injury,

even

improved

surgery,

could

siqnificant handicap on the open labour market.

If, for example.

her husband died

or ceased to be a barrister and she were forced

to compete for work as

a secretary with other women not having

her disability, one would think that

a substantial risk

of at

least some

loss would arise. Counsel for the respondent argued

correctly that, in that situation, the plaintiff might seek

employment in

whlch

her shoulder disability would be

a lesser

handicap than it would be in work

as a typist - for example, in

journalism, work she had once performed.

Yet,

even on that

basis, the plaintiff, we think, is entitled to some compensation for the moderate handicap she would bear in exploiting the range

of opportunities open

to her.

Senior counsel for the appellant also argued that for

similar reasons the allowance made

f o r future paln suffering and

loss of amenities ($10,000) was inadequate. He pointed out that

$15,000 was allowed under that heading to the date of trial (a

period of six and a half years) and that $5,000 for the whole of

the rest of the plaintiff’s life seemed disproportionately low. We agree, principally for the reason that we think his Honour

took too sanguine

a view of the likely effect of the surgery.

We were urued by senior counsel for the appellant

send the matter back

for a

new trial on the question of damages.

if satisfied of

the correctness of his complaints about the

reasons of the learned trial judge. Although there

are

some

attractions in that course. we are satisfied that this is not

case in

which it is necessary, in order to make a

just award,

that the matter be retried. Both sides appear

to be content to

the

learned

trial

judge’s

findings,

subject

the

important exception mentioned above. Neither party attempted to place before us any evidence as to the actual effect of the

10. !

operation. so f-r

as it can presently be discerned. There is

necessity to strike a balance between the attainins of a perfectly correct outcome and the amount of community resources

devoted to that end.

We have come

to the conclusion that the

proper course is not to order

a new trial. but to increase the

award made

by the learned trial iudue bp

$15,000 as additional

compensation for loss of earnins capacity and future non-economic	!
I ,
loss.	I
I ' I,

The appeal will be allowed with costs, and the judgment

in favour of the plaintiff increased to

$ 4 7 . 7 2 0 . 3 0 .

[1986] FCA 274

7 Apr 1986