New South Wales Insurance Ministerial Corporation v Gordon

[1999] NSWCA 84

CITATION:	NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION v GORDON [1999] NSWCA 84
FILE NUMBER(S):	CA 40873/97
HEARING DATE(S):	23 March 1999
JUDGMENT DATE:	15 April 1999
PARTIES :	NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION - A JUDITH ANNE GORDON - R
JUDGMENT OF:	Handley JA at 1; Sheller JA at 2

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	645/93
LOWER COURT JUDICIAL OFFICER:	Moore DCJ

COUNSEL:	J D Hislop QC/D J Russell - A Paul Webb QC/D B Studdy - R
SOLICITORS:	Turner Whelan - A Scott Sheils & Glover - R
CATCHWORDS:	DAMAGES - QUANTUM - contribution of medical condition - contribution of nature and conditions of work
CASES CITED:	Government Insurance Office v Warwick (unreported) Court of Appeal, 23 November 1993
DECISION:	Dismissed with costs

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40873/97
DC 645/93
HANDLEY JA

SHELLER JA

NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION v GORDON

The respondent was involved in a motor vehicle accident, sustaining injuries to her spine and knees, as well as psychological trauma. She sued the Government Insurance Office of New South Wales and obtained judgment of $291,761.20. The appellant replaced the Government Insurance Office as a party.

Prior to the accident the respondent was employed by Home Care NSW as a part-time permanent home-aid, caring for elderly and disabled people in their homes. She also did seasonal work as a fruit picker and packer. When the respondent was in her mid-20’s, she was diagnosed as suffering from systemic lupus erythematosis, a condition which caused generalised aches and pains.

The appellant appealed against the quantum of damages on three grounds:
· whether the spinal injury was the result of the accident, or whether it was caused or contributed to by the nature and conditions of the respondent’s work;
· the likely impact of other medical conditions suffered by the plaintiff; and
· the calculation of the appropriate sum of damages, particularly the award given for general damages.
Held:
By Sheller JA, Handley JA agreeing:
(1) The trial Judge did not err in finding that other medical conditions, particularly lupus, were not causative of the respondent ceasing work in 1990 and her subsequent back pathology.
(2) The finding of the trial Judge that the respondent’s additional duties at work in the period immediately before her resignation did not contribute to her injury makes it impossible for this Court to attribute any part of the damages recoverable to the nature and conditions of the respondent’s work.
(3) The amount awarded for general damages did not demonstrate any error in the primary Judge’s exercise of the discretion of awarding damages. The primary Judge correctly took into consideration the respondent’s age and the higher possibility of the vicissitudes of life.
Cases cited
Government Insurance Office v Warwick (unreported) Court of Appeal, 23 November 1993

ORDERS
Appeal dismissed with costs

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40873/97
DC 645/93

HANDLEY JA

SHELLER JA

Thursday, 15 April 1999

NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION v GORDON

JUDGMENT

1 HANDLEY JA: I agree with Sheller JA.
2 SHELLER JA: On 18 July 1997 his Honour Judge Moore awarded the plaintiff, Judith Anne Gordon, a verdict of $291,761.20 in proceedings she had begun against the Government Insurance Office of New South Wales on 5 June 1991.
3 The plaintiff was injured in a motor vehicle accident which occurred on 16 January 1987 when another vehicle ran into the side of her vehicle. Judge Moore described the accident as being anything but a minor one. The other car was substantially damaged. The driver was trapped in it. The front of it was crumpled back to the back door. The plaintiff’s car veered off and suffered less damage. After the accident the plaintiff was able to get out of her car. She went for help and then later drove to her mother’s house.
4 The defendant contested liability and this was treated as a separate issue which his Honour Judge Christie in separate proceedings decided in the plaintiff’s favour without reduction. The defendant now appeals from Judge Moore’s decision on the quantum of damages. The appellant, NSW Insurance Ministerial Corporation, replaced the Government Insurance Office as a party.
5 At the time of the accident the plaintiff, who was then aged 40 and married, was employed by Home Care NSW as a part-time permanent home aid. Her duties involved the care of elderly and disabled persons in their homes. She also was doing seasonal work fruit picking and packing. The significant injuries for which the plaintiff claimed were to her cervical and lumbar spine and to her knees. She also claimed for psychological trauma. The major injury alleged was that to her lumbar spine.
6 The plaintiff was away from work after the accident for two to three days and then continued without any significant loss of time until late 1989. She terminated her employment effective from 9 January 1990. After her resignation she worked packing eggs. Ultimately, she ceased work altogether and on 1 December 1994 underwent spinal decompression at L3/4 performed by Dr Sheehy. This was only partially successful and on 1 November 1995 a spinal fusion was performed by Dr Sheehy and Dr Neill.
7 The appellant defined the critical questions in the appeal as:

(a) whether the spinal pathology was the result of the January 1987 motor vehicle accident;
(b) what was the likely impact of other medical conditions suffered by the plaintiff; and
(c) the calculation of the appropriate sum of damages.

8 The plaintiff had a lengthy medical history. Various signs and symptoms in her late teens and early 20’s were eventually diagnosed as systemic lupus erythematosis otherwise known as SLE. The trial Judge observed that she continued to have trouble with that disease from time to time but not enough the keep her out of the workforce. However, it caused her to have about six miscarriages before her one child was born in 1976. From time to time during pregnancy she experienced pain and discomfort in her back as she did also during menstruation. In her evidence she described three accidents she had been involved in, two motor vehicle accidents and one when a tractor ran over her legs. None caused any serious injury. She volunteered that on occasions she suffered from nerves. She referred to the period of about eighteen months after her son was born and said that those feelings came afterwards but on rare occasions. She was given to consulting her general practitioner about them.
9 The trial Judge observed that the significant thing about her medical history until the 1987 motor vehicle accident was that it did not interfere with her manner of living and with her exceptionally assiduous application to work and household activities. She started with Home Care as a home aid in 1982. The work she did was the heaviest of domestic work for people unable to do such work and also attendant care for people unable to look after their own toileting.
10 The plaintiff also worked on a property with her husband. She described herself as his right-hand man and while not doing the very heaviest types of work, she did much of the very heavy work about the property. The property was used for the growing of fruit and later depasturing cattle. Initially cherries were grown and the plaintiff took part in the work of packing cherries during the harvest. That was an extremely heavy job and one which caused all the packers to experience some tiredness and back pain at the end of a heavy shift. The plaintiff frankly volunteered that she experienced those symptoms herself. Later the property also grew prunes and the plaintiff was engaged in the harvesting of prunes which was a less demanding occupation.
11 Judge Moore said that the plaintiff was an extremely active outdoor person, happily engaged in her work and her domestic activities. Although she had recourse to doctors on many occasions that did not interfere with her full and rewarding manner of living. She was quite a slender woman and not one with the outward appearance of being given to heavy work. She did all the housework around the family residence. She was extremely house proud and did many things at the outer bounds of housekeeping such as making her own jams, pickles and things of that nature. Some of that work was quite heavy. Her work on the property was done both before and after Home Care work when daylight hours and weather allowed and on weekends.
12 After the accident when she got to her mother’s house the plaintiff suffered a shock reaction. She began to feel physical symptoms of pain in her neck, pain all through her spine, pain in her low back. She had soreness across her chest from a seat belt injury especially on her right side. In her own words she felt dreadful and as the night wore on her pains became much worse. She had what she described as a shocking headache. She did not even realise that she had a lump on the side of her head which others pointed out to her and which was the size of a goose egg. Her knees were sore where they had come in contact with the dashboard and she had lost skin off her elbow. Her lower back was not only aching, it was very very stiff. The accident took place on a Friday. She took some time off work, probably two or three days, but she soon returned.
13 On the day after the accident, Saturday 17 January, she visited her general practitioner, Dr Pilotto. His notes referred to the motor vehicle accident of the day before and said: “No obvious injury at time. Last night noted lump on right side of the head and headache and ache at the back of the neck.” On examination he found that the neck movements were full, with pain at extremes. No lump was felt on the right parietal area. Dr Pilotto saw the plaintiff again on 22 January and noted that neck and headaches continued. The plaintiff was tender over the nuchal area. Neck movements were full, with pain on left. It is to be observed that the notes make no reference to lumbar pain. Nor, indeed, do the notes of Dr Pilotto of visits in February, June, July, August, October and December 1987 and March 1988 although the notes of 12 October 1987 refer to arthritic pains in neck, back, shoulders, elbow and fingers. Dr Pilotto was not called to give evidence.
14 In the meantime, on the Monday or Tuesday after the accident the plaintiff consulted a solicitor, Mr Moyle. He made extensive notes though he erroneously referred to the date of the accident as 16 January 1986, a mistake common enough in the first month of a new year. Amongst the injuries he listed was “Back - injury to the lumbar spine. Pain radiating across the lumbar spine to the sacro iliac joints down to the coccyx”. Mr Moyle referred the plaintiff to Dr Langsford who, in a report of 5 February 1987 under the heading “Injuries sustained”, noted “Lumbar spine Mrs Gordon said the day after the accident she developed pain in the lower lumbar region, but this was constant, and there was no radiation of this pain.” Examination of the lumbar spine revealed tenderness at the L5/S1 level. This was more pronounced on the left side than the right. There was generalised “decrease movement” of the lumbar spine, but straight leg raising was normal. Dr Langsford summarised the position by saying that the plaintiff had suffered injuries as outlined in the motor vehicle accident of 16 January. At the time of examination there were ongoing problems but there was no evidence of any neurological abnormality. “It is most likely that most of these problems are going to be related to a soft tissue injury, and one would anticipate that she should make a good recovery. It is much too early, of course, to be able to be certain about this.”
15 Dr Langsford provided later reports on 11 April, 1988 and 17 November 1993. His reports were obtained for medico legal purposes. It does not appear that he treated the plaintiff. On 17 November 1993 Dr Langsford recorded that the plaintiff told him that she was experiencing worsening pain in her lumbar area. She had a continuous pain in the lower lumbar area with pain radiating to the right hip.
16 The trial Judge observed that it was from the time that the plaintiff first saw Dr Langsford that she began to be incommoded by her back injuries though, nonetheless, she continued to work. She became dissatisfied with Dr Pilotto as a result of the treatment he gave her and went to see Dr Hamilton-Gibbs, who took over the work as her general practitioner. In fact, he or his practice had acted as the plaintiff’s general practitioner since as early as 1961 with perhaps a break between June 1986 and May 1987. The plaintiff said that she was not perfectly happy with Dr Hamilton-Gibbs treatment but because of her good relationship with him kept resorting to him for some years. In particular, she used to go to him and complain about her lower back pain constantly. She said she was told he was very sorry and he would give her more arthritis tablets and more pain killers. She said she even asked him to send her out for an x-ray at one visit but he said it was not going to cure it and he would not do it. She said that is why she eventually left Dr Hamilton-Gibbs and went to Dr Khalfan at Harden. The plaintiff felt that she should have had treatment for her lower back pain much sooner than she did.
17 Dr Hamilton-Gibbs did not give evidence. However, on 28 December 1989 he wrote a letter “To whom it may concern” in the following terms:
“Mrs Judith Gordon suffers from Lupus erythematosus. She has been unfit for work and because of deterioration in her condition especially with regard to low back problems I feel that it is in her best interests to retire from the work force. The situation has been becoming progressively worse over the past two years.”

It was on the basis of this letter that the plaintiff gave up her work with Home Care.

18 The trial Judge accepted a submission for the plaintiff that Dr Hamilton-Gibbs may not have been paying as much attention as was warranted to the plaintiff’s lower back condition. He was particularly fascinated by the lupus condition, a relatively rare and interesting medical phenomenon. In particular, he sent her to Dr Hassall, a specialist in the treatment of lupus, without referring to her back problem.
19 The trial Judge found that there were two streams of medical treatment going ahead - one for the lupus where those attending the plaintiff gave concentrated attention to that disease, and another stream of medical treatment for her motor accident injuries. His Honour said:
“It is an odd feature but one which is not outside the experience of the Court that the doctors who were treating her for lupus have recorded nothing at all about the motor accident and in the circumstances of this case I do not take that to be indicative in any way that the plaintiff was not in fact suffering from motor accident injuries. In fact there is substantial corroboration of the fact that she was receiving active treatment from what I have described as the other stream of medical practitioners.”

It was a feature of the plaintiff’s personality that she did not wish those around her to feel that she was one who complained or was subject to any form of depression. Dr McEwin said that some people are anxious to tell everybody about their complaints and others suppress them. His Honour observed:
“Notwithstanding the fact that the plaintiff went to her doctor frequently and told her doctor about her injuries I am satisfied that she suppressed her complaints to those who were generally about her and I can well understand that until she was specifically asked about her motor accident by those doctors treating her for her lupus that she did not mention the motor accident to those doctors. She understood that she was there in that limited fashion.”
The doctor to whom the trial Judge was there referring must have been Dr Hamilton-Gibbs.

20 By the end of 1989 the plaintiff found she was unable to carry on with her work. Her supervisor recommended she retire and that she did.
21 At the end of 1993 she went to see Dr Khalfan with whom she discussed her various complaints, one of which was the chronic lower lumbar back ache which was progressively getting worse. She described to Dr Khalfan the motor vehicle accident she had on 16 January 1987. She said that the severity of the discomfort and stiffness associated with severe lower back ache had reached a stage where she was finding it very difficult “to carry out any form of assistance that she was obliged to in her husband’s business at the orchard”. On examination Dr Khalfan said that she had obvious tenderness (localised) in the lower lumbar region and that spinal movement of that level was fairly restricted with stiffness and pain. The doctor thought she required further investigation but because it was the peak of the fruit season she declined to do anything further but promised to see him again after the workload on the orchard became less demanding. Dr Khalfan reviewed her on 21 March 1994 and said that plain x-rays of the L/S spine revealed there was obvious subluxation of L3 on L4, marked disc narrowing at L3/L4 associated with marked degenerative change in the lumbar facet joints. A CT lumbar spine showed marked facetal osteoarthritic change at L3/4 with symmetric posterior disc bulge causing canal and lateral recess stenosis. At L4/L5 level there was moderate disc protrusion.
22 Various options were discussed and the plaintiff agreed to see Dr Lithgow in Canberra who agreed that she would benefit from facet injections at L3/L4/L5/S1. That procedure was performed but produced very little improvement. The doctor observed:
“With the history given of the MVA it is my opinion that she sustained a lumbar injury during that accident which has progressively become worse to the extent of severe facetal osteoarthritis.”
23 Dr Khalfan referred the plaintiff to Dr Sheehy who conducted the two operations to which I have referred, one to relieve stenosis and one to fuse the spine at L3/L4. The trial Judge said: “The evidence satisfies me that the spinal operations were a necessary result of the motor accident injury …..”.
24 The plaintiff also suffered a grave psychological injury which was not treated. She was seen by Mr Petroni, a clinical psychologist in Canberra, who said she was suffering from severe post traumatic stress reaction allied with a fear of travelling in motor vehicles.
25 It became clear during the hearing, where there was vigorous conflict of medical opinion about the plaintiff’s condition and its cause, that a good deal turned upon the plaintiff’s evidence and the history she gave the doctors. The trial Judge found the plaintiff to be pellucidly honest and genuine in the complaints which she had made in the witness box and in her assessment of their cause. She believed that her ill health since the motor vehicle accident was dominated by the injuries she received in that accident.
26 One witness, Mrs Margaret Baker, who was the plaintiff’s supervisor towards the end of her period of employment at Home Care, gave evidence which conflicted at some points with the plaintiff’s. The trial Judge preferred the plaintiff’s evidence where there was conflict but said:
“The plaintiff as she conceded may well not have told Mrs Baker about the effect that the work was having on her back. That is a feature which one not infrequently encounters where a worker who is anxious to keep working and not jeopardise the employment does not tell his or her employer about disabilities and I do not take that as an indication that the plaintiff was not in fact suffering in the way that she said she was.”
27 In dealing with submissions about the plaintiff’s condition before the 1987 accident, submissions which to some extent were repeated in this appeal, his Honour said, after referring to the recorded medical history which went back for over thirty years, that during that period the word “backache” appeared three times and then certainly twice in association with some other complaint. On those occasions it did not seem to have been specific to the lumbar area.
28 The appellant placed some reliance upon the reports of Dr Hassall and particularly that of 22 March 1990 when that doctor said the reason for her visit to him and the condition for which she was subsequently investigated and treated “had no direct bearing on the motor vehicle accident which occurred in January 1986 [sic].”
“Discussing her problems in an objective manner, Mrs Gordon said she was not sure whether there was a great deal of change after the accident. Concerning her muscular skeletal system, Mrs Gordon does have slight cervical scoliosis to the left and increased thoracic lordosis, but I do not believe that these conditions are the result of the accident described.”
29 Of this the trial Judge said that the plaintiff’s own evidence was that she felt she was being treated simply by those doctors in regard to her lupus and that they were interested in her condition as a condition. She felt that she had to be talked into going to see those doctors. She felt they were not interested in her back pain. The doctors who were looking after her lupus were simply concentrating on that to the exclusion of all other features and their opinions concerning the contribution of her back injury had been coloured by that. His Honour accepted a submission that he should accept the evidence of the stream of medical opinion concerned with the plaintiff’s back condition.
30 The plaintiff’s affirmative case was supported by Dr Khalfan, Dr Brook, whom his Honour described as a rheumatologist specialist in lupus, Dr McEwin, who specialised in rehabilitation, Dr Roebuck, a specialist orthopaedist and Mr Petroni the consultant psychologist. I have already summarised what Dr Khalfan said. Dr Brook concluded that the plaintiff’s main problem was pain across the lower lumbar region. He did not believe that lupus was a factor in the generation of the plaintiff’s cervical and lumbar pain. Despite cross-examination he remained adamant in his opinions.
31 Dr McEwin, relevantly, was of opinion that the lumbar spondylosis particularly at L3/4 was made symptomatic by the accident and had progressed to the need for operation to reduce embarrassment to the spinal canal and later fused. His Honour accepted the evidence of Dr Khalfan, Dr McEwin and Dr Roebuck. Dr Khalfan he found notably impressive. Dr Roebuck initially thought the plaintiff suffered from a muscular ligamentous injury only. Ultimately, he accepted that the plaintiff suffered from a severe disc protrusion as a result of the motor vehicle accident. He believed that the plaintiff was virtually unemployable. In cross-examination he particularly, firmly and responsibly adhered to his opinions. A re-reading of Dr Roebuck’s reports and oral evidence confirms this conclusion.
32 Mr Hislop QC, who appeared for the appellant, submitted that what Dr Roebuck said was inconsistent with Dr Sheehy’s reports of the operations he conducted. However, Mr Webb QC, who appeared for the respondent, demonstrated that there was no such inconsistency. Furthermore, Dr Roebuck referred to modern techniques of diagnosis to show that the problem now recognised in the lumbar area would not have been recognised so easily at the date of the accident. In cross-examination it was never suggested to Dr Roebuck that Dr Sheehy had some contrary view and even less that such a contrary view meant that he, Dr Roebuck, was wrong.
33 His Honour’s acceptance of the evidence of these doctors which related the lumbar condition to the 1987 motor vehicle accident made the appellant’s task difficult, if not impossible. Little attack was made upon the allied finding relating the plaintiff’s post traumatic stress reaction causally to the 1987 accident.
34 Having referred to the medical evidence called on behalf of the defendant, the trial Judge said that he accepted the medical evidence in the plaintiff’s case where it conflicted with that in the defendant’s case. He went on to find that on balance there were no active problems with lupus which led to the plaintiff’s resignation from Home Care. The evidence was that it was quiescent at the time of the hearing and did not have any significant causal effect on the plaintiff’s injuries and disabilities and incapacities which were caused by the motor accident. He said that he had also considered whether or not the additional duties which the plaintiff was performing at Home Care in the period immediately before her resignation themselves either caused or contributed to her injury and on the evidence said that it did not seem they did in a causal sense.
35 Faced with these findings, Mr Hislop put the following submissions designed, as I would understand it, to persuade this Court to conclude that the trial Judge’s finding that the January 1987 accident caused the plaintiff’s ongoing lumbar condition could not be supported:

1. The only evidence of a problem in the back which was reported to any doctor before the end of 1989 was that reported to Dr Langsford who identified it as being at the L5/S1 level of the spine.
2. That the accident was, so far as the plaintiff and her vehicle were concerned, a minor one. The plaintiff was wearing a seat belt, had an opportunity to brace herself before the event and was able to walk. Her vehicle was not badly damaged and in a condition where it could be driven away. The plaintiff herself was not aware of having suffered any injury. However, the plaintiff’s evidence, which the trial Judge accepted, and the list of complaints she made to Mr Moyle and Dr Langsford, belie the conclusion that the plaintiff suffered only minor injury whatever may have been the state of her motor vehicle.
3. The plaintiff took only two or three days off work after the accident. Until late 1989 she had no time off for back problems. This is explained by the trial Judge’s findings that the plaintiff was a willing worker inclined to suppress her complaints. Although she began to be incommoded by her back injuries after the accident she continued to work.
4. The nature of her work. Her work with Home Care, picking and packing cherries and domestically was very heavy and involved considerable exertion. This would be expected to contribute to her lumbar condition. However, Dr Roebuck said that the internal disruption of the disc, which was at the centre of the lumbar problem, was the result of the motor vehicle accident.
5. The absence of any reference to a lumbar problem in Dr Pilotto’s notes after the accident. It was demonstrated to the trial Judge’s satisfaction that in several respects at least, Dr Pilotto did not keep accurate notes. His notes of the plaintiff’s condition after the accident did not compare with Mr Moyle and Dr Langsford’s comprehensive notes. This being so, it was scarcely surprising that against the weight of the plaintiff’s own evidence and the medical evidence she relied upon, no weight could be placed upon Dr Pilotto’s notes.
6. Dr Hamilton-Gibbs made no mention of lumbar complaint. However, this carries no weight against the plaintiff’s evidence that she complained in vain to Dr Hamilton-Gibbs about her back and the terms of the letter that ultimately he wrote on 28 December 1989 to which I have already referred.
7. Dr Hassall’s statement that the condition for which the plaintiff was investigated and treated by him had “no direct bearing on the motor vehicle accident which occurred in January 1986 [sic]”. This and his account of what the plaintiff told him about her beliefs was put forward as an example of a constant theme amongst those who treated the plaintiff for lupus. The trial Judge was alive to these matters and explained this in a way which was open to him.
8. Mr Hislop examined in some detail the report of Dr Langsford and its reference to L5/S1 not L3/L4. I do not think this detracts in any way from the force of Dr Roebuck’s evidence.
9. Dr Sheehy never indicated the cause of the problem for which he was providing treatment. However, Dr Roebuck did and it was never suggested to him that anything he said was inconsistent with Dr Sheehy’s reports.
10. Mr Hislop suggested that the plaintiff’s lumbar condition could be explained by her undertaking heavy work for which she was constitutionally unsuited and the increase of work load after the accident when, in about 1988, greater demand was put upon the plaintiff as a result of some reorganisation of Home Care in accordance with new Government policy. Again, these matters cannot stand against the trial Judge’s acceptance of Dr Roebuck, Dr Khalfan and Dr McEwin.

36 As was submitted by Mr Webb, the various matters advanced on behalf of the appellant in support of the general submission that the trial Judge erred in connecting causally the lumbar condition with the motor vehicle accident were submissions put to the trial Judge and rejected by him in favour of his acceptance of the plaintiff as an honest witness and his acceptance of the medical evidence she relied upon. The defendant had the opportunity at the trial to test these suggestions against the evidence of the medical witnesses. To the extent to which this was done it failed. None of the matters relied upon, in my opinion, give any ground for this Court to interfere to set aside the trial Judge’s conclusions.
37 In the written submissions it was suggested that the trial Judge erred in finding that the plaintiff suffered a post traumatic stress reaction of a depressive nature caused by the 1987 accident. This finding was supported by the evidence of Mr Petroni, which the trial Judge accepted. No submission was put to suggest that it was not open to the trial Judge to accept the psychologist’s evidence. The appellant submitted that the trial Judge erred in not finding that other medical conditions, particularly lupus, were causative of the respondent ceasing work in 1990 and her subsequent back pathology. However, there was evidence to the contrary, notably that of Dr Brook. The trial Judge acted on this evidence and again it is not suggested it was not open for him to do so.
38 The appellant submitted that the back pathology was at least contributed by the plaintiff’s work for Home Care after the motor vehicle accident thus entitling her to a worker’s compensation award the amount of which should be deducted from any verdict recovered against the appellant. As part of this, it was submitted that the trial Judge erred in rejecting the evidence of a barrister, Mr Nicholson, who gave evidence about the amount of an award which would have been made if the lumbar condition was causally related to the nature and condition of the plaintiff’s work. Reliance was placed upon the decision of this Court in Government Insurance Office v Warwick (unreported) Court of Appeal, 23 November 1993.
39 The trial Judge rejected this argument principally for the reason that no application had been made to the Compensation Court and his Honour felt unable to say whether if such a claim had been made it would have been successful. However, earlier in his reasons for judgment, he had found that the additional duties which the plaintiff was performing at Home Care in the period immediately before her resignation did not cause or contribute to her injury. That finding makes it impossible for this Court now to attribute any part of the damages recoverable to the nature and conditions of the plaintiff’s work.
40 Finally, the appellant submitted that the award of $100,000 for general damages was excessive. Emphasis was placed upon the effect on the plaintiff’s lifestyle, particularly in terms of pain and suffering, of her medical condition apart from the consequences of the 1987 motor vehicle accident. To some extent this was illustrated by the fact that in assessing future economic loss the trial Judge increased the discount for vicissitudes and then calculated future economic loss on the basis of earnings for a further ten years, that is to say, for the period up to the year 2007 when the plaintiff will be 61 years old.
41 There is no doubt that in awarding general damages his Honour was conscious of these matters. He said that her general damages, if it were not for any of the special features which attended her case, would have been more than the figure he awarded. The figure he chose took account of her age and the possible higher incidence of the vicissitudes of life. The plaintiff was described as an extremely outdoor person, happily engaged in her work and her domestic activities. According to the findings this lifestyle was effectively destroyed part way through what would otherwise have been regarded as her working life by the motor vehicle accident. She went from being a person who, despite medical problems, got a lot out of life, to being a person who was, in the language of Mr Petroni, very depressed, inactive, fearful and housebound. She was predominantly despondent and in medical terms, resentful, irritable and pessimistic about future adjustment in respect of her pain problem. I am not persuaded that the amount awarded for general damages of $100,000 demonstrated any error in his Honour’s exercise of the discretion of awarding damages.
42 I would dismiss the appeal with costs.

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