Morris v Kent

[1992] QCA 22

IN THE COURT OF APPEAL	[1992] QCA 022
SUPREME COURT OF QUEENSLAND	Appeal No. 48 of 1991

DIANNE CHERRYLL MORRIS

(Plaintiff) Respondent

- and -

WILLIAM ARNOLD KENT

(Defendant)

- and -

FAI GENERAL INSURANCE COMPANY LIMITED

(Defendant by Election)Appellant

The President
Mr Justice Davies

Mr Justice Thomas

Judgment of the Court delivered on 6th March, 1992

APPEAL DISMISSED WITH COSTS.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 48 of 1991

Before the Court of Appeal

The President
Mr Justice Davies

Mr Justice Thomas

BETWEEN:

DIANNE CHERRYLL MORRIS

(Plaintiff) Respondent

- and -

WILLIAM ARNOLD KENT

(Defendant)

- and -

FAI GENERAL INSURANCE COMPANY LIMITED

(Defendant by Election)Appellant

JUDGMENT - THE COURT

Delivered the 6th day of March 1992

MINUTES OF ORDER: Appeal dismissed with costs.

CATCHWORDS:	Appeal and new trial - Findings of fact - Appeal from determination of quantum in personal injuries action following trial judge's inadvertently taking into account part of hospital records not admitted - whether respondent discharged onus that evidence could not have affected result - whether retrial necessary
Counsel:	Mr R. King-Scott for the Appellant Mr J. Griffin Q.C. for the Respondent
Solicitors:	Bradley and Company for the Appellant Cervetto and Company for the Respondent

Hearing date: 18th February, 1992
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 48 of 1991

Before the Court of Appeal

The President
Mr Justice Davies

Mr Justice Thomas

BETWEEN:

DIANNE CHERRYLL MORRIS

(Plaintiff) Respondent

- and -

WILLIAM ARNOLD KENT

(Defendant)

- and -

FAI GENERAL INSURANCE COMPANY LIMITED

(Defendant by Election)Appellant

JUDGMENT - THE COURT

Delivered the 6th day of March 1992

The respondent was awarded damages in the sum of

$98,320.47 for personal injuries which she sustained in a
motor vehicle collision on 19th March 1986. It is not in
dispute that the respondent's damages were caused by the
negligence of the driver of the other vehicle. However, the
appellant, the insurer in respect of that vehicle contends
that the damages awarded to the respondent in the District
Court were manifestly excessive, and, more particularly,
criticises a number of the component amounts of the total
sum. The appellant asks that the judgment be set aside and
that instead this Court assess the damages to which the
respondent is properly entitled.

The respondent, who was born on 25th May 1946 was

"happily married to a professional man" with two children
when she was injured. She was described by the trial judge
as "intelligent, articulate, a trained music teacher and
formerly a talented pianist". At the time of the accident,
she and her husband and children were on holidays in
Australia but otherwise resided "in a pleasant three storey,
six bedroom house in Hampshire, England". The respondent
and her family returned to England in about July 1986, sold
their home and moved to a smaller residence in a different
locality. Subsequently, in about March 1989, they returned

to Australia and commenced to live on the Gold Coast.

While living in England prior to the accident, the

respondent had taught music at schools prior to the birth of
her children and, both before and since the births, had
earned money by giving private music lessons and by playing
in English pubs in her district, an activity which also
formed an important part of the social life of the

respondent and her husband.

The respondent's injury consisted of an acute

ligamentous strain or incomplete tear in her cervical spine,
particularly at the C5-6 level anteriorly. According to
medical evidence which the trial judge accepted, she was
initially disabled to the extent of some 10% loss of
function of her spine as a whole, but that improved over
time and, by the time of the trial, her disability was about
5% loss of function with an increased risk of degenerative
change of the affected joints in later years, with
subsequent increased disability. She experienced, and
continues to experience, considerable pain and loss of
amenities as a result of her injury. One consequence, as the
trial judge found, is that she needs "therapeutic massage
for her cervical spine and shoulder area at the end of each

working week in order to cope".

The trial judge awarded the respondent $25,000 for

pain, suffering and loss of amenity, past, present and
future, with interest on $10,000 at 4% from the date of the
accident to the date of the trial adding a further
$2,071.23. The appellant argued, with some justification,
that the amount of $25,000 exceeded other awards in similar
circumstances. However, it was acknowledged that the cost
of the future therapeutic massages needed by the respondent,
for which no provision was otherwise made in the judgment,
might have been intended to be included in the award for
pain, suffering and loss of amenity. The resolution of the
appellant's complaint on this matter is somewhat complicated
by the associated award of interest and is otherwise less
than totally satisfactory. On one view, it might be that the
appeal should be allowed if an error is demonstrated in one
component of the total award. However, if there is no error
in the award viewed as a whole, there is insufficient
purpose in interfering with the award for pain, suffering
and loss of amenity when a corresponding adjustment would be
appropriate to compensate for the omission to include an

amount for the cost of future massage.

The damages awarded also included a number of amounts

for past economic loss, including $14,421.28 (including
interest) for past economic loss during the period when the
respondent and her family resided in England between the
date of the accident and their migration to Australia and
$2,500 (including interest) in respect of piano teaching and
piano playing income not earned between March 1989, when the
respondent and her family returned to Australia, and the
date of the trial. Essentially, the foundation for these
amounts lay in the trial judge's conclusion that, during
both periods, the respondent would have earned income as a
piano teacher both in a school and from private lessons, and
as an entertainer playing the piano but for her injuries.
Broadly speaking, the respondent was awarded $4,000 per year
on this basis for the period when she was in England and
about $1,000 per year for the period between her return to
Australia and the trial.

The trial judge recognised that the assessment of the

"actual financial results" of the respondent's injuries were
"a matter of some difficulty and/or confusion". For
example, the respondent's entitlement in respect of the
period in which she resided in England after the accident
was complicated by a number of circumstances, including a
change of residence involving a move from one district to
another, a period during which her youngest child was at
home prior to commencing school, and an incident in which
she broke her wrist and was incapacitated from piano playing

for some six months.

While the trial judge, who was obviously impressed with
the respondent, expressly found that she "intended to return
to her income earning pursuits", there is force in the
appellant's criticism of the meagre evidence to ground a
conclusion that suitable employment opportunities would have
been available to the respondent if she had not been
prevented by her injuries from working. However, although
such evidence as there was tended to be generalised and
vague, there was sufficient, on which the trial judge could
make his findings. It was presumably because of the
incomplete state of the evidence that the attributed to the
respondent the loss of only comparatively minor employment

opportunities.

Another complaint made by the appellant concerned a

clear error by the trial judge in awarding the respondent
$2,600 plus interest of $591.09 in respect of lost earnings
in 1989. For part of that year, the respondent worked at a
school at Southport. The trial judge mistakenly concluded
that she was not paid on a full time basis during that
period. Further, he erroneously related that conclusion to
the full year, whereas the respondent worked at the school

only for about three to four months from August to December.

She had not returned from England to Australia until March

and thereafter was not accredited and therefore could not

work until August.

However, once again, there is an offsetting factor. It

was not disputed that the trial judge had overlooked
including an approximately equivalent amount in the award

for special damages which had been proven.

The appellant's final attack upon the award concerned

the future economic loss of $40,000 which the trial judge
awarded to the respondent. Essentially, the trial judge
concluded that the respondent is physically capable of
working a full week but, if she did, would have increased
pain and suffering after work and would need a substantial
portion of the weekend to recover. Accordingly, he based
her future economic loss upon a conclusion that she would

lose one day's work per week. On that footing, he said:

"I assess her future economic loss under all heads at
$100.00 per weeks for fifteen years viz. $54,000. I
discount that down to $40,000 for the usual reasons."

The appellants submitted that the trial judge failed to

give proper weight to the improvement in the respondent's
condition and the economic consequences of it, especially
having regard to medical evidence and the evidence of an
occupational therapist concerning the respondent's ability
to work. Reliance was also placed on the availability of
full time jobs with reduced workloads but full pay, such as

the respondent had undertaken in the later part of 1989.

While there is undoubted force in the appellant's

submissions, the matters to which they are addressed were
properly matters for the trial judge, who had before him
evidence upon which he could form the conclusions which he
did. The amount awarded to the respondent for future
economic loss is generous, if not close to the maximum which
the evidence could sustain. However, there is no basis upon
which this Court could properly substitute the lower amount
even if it would have arrived at a different conclusion from

that of the trial judge.

In the circumstances, although there are deficiencies

in the judgment the subject of this appeal, the appeal
should be dismissed with costs.