Ramm v Fletcher, Graeme Bobcat and Truck Hire, Lochran
[1996] QCA 191
•18/06/1996
AND:
GRAEME BOBCAT & TRUCK HIRE (a firm)
(Second Defendant) Respondent
AND:
ALLAN MARK LOCHRAN
(Third Defendant) Respondent
AND:
SUNGOLD PLASTERBOARD SUPPLIES PTY LTD
and SUNGOLD PLASTERBOARD SUPPLIES (a firm)
(Fourth Defendants) Respondent
AND:
FREDERICKSON TRANSPORT (a firm) and
FREDERICSEN'S TRANSPORT (a firm)
(Fifth Defendants) Respondent
AND:
SUNCORP INSURANCE AND FINANCE
(Defendant by Election) Respondent
Davies J.A.
McPherson J.A. Shepherdson J.
Judgment delivered 18/06/1996
Separate reasons for judgment by each member of the Court each concurring as to the order
made.
________________________________________________________________________
_______
APPEAL DISMISSED WITH COSTS.
2
| CATCHWORDS: | DAMAGES - personal injury - general damages - future economic loss - whether manifestly inadequate and unreasonable. |
| Counsel: | Mr S. Williams Q.C., with him Mr P. Ambrose for the appellant Mr J. Griffin Q.C. for the respondents |
| Solicitors: | Walsh Halligan Douglas for the appellant Bradley & Co. for the respondents |
| Hearing date: | 12 April 1996 |
| IN THE COURT OF APPEAL | [1996] QCA 191 |
| SUPREME COURT OF QUEENSLAND |
Appeal No. 207 of 1995
Brisbane
| Before | Davies J.A. McPherson J.A. Shepherdson J. |
[Ramm v. Fletcher & Ors.]
| BETWEEN: | SVANTJE RAMM |
(Plaintiff) Appellant
| AND: | MARK RAYMOND FLETCHER |
(First Defendant) Respondent
| AND: | GRAEME BOBCAT & TRUCK HIRE (a firm) |
(Second Defendant) Respondent
| AND: | ALLAN MARK LOCHRAN |
(Third Defendant) Respondent
| AND: | SUNGOLD PLASTERBOARD SUPPLIES PTY. LTD. and SUNGOLD PLASTERBOARD SUPPLIES (a firm) |
(Fourth Defendant) Respondent
| AND: | FREDERICKSON TRANSPORT (a firm) and FREDERICSEN'S TRANSPORT (a firm) |
(Fifth Defendant) Respondent
| AND: | SUNCORP INSURANCE AND FINANCE |
(Defendant by Election) Respondent
REASONS FOR JUDGMENT - DAVIES J.A.
Judgment delivered the 18th day of June 1996
I agree that this appeal should be dismissed substantially for the reasons given by Shepherdson J.
The learned trial Judge's estimates for both of the components of general damages and of loss of future
earning capacity depended very much on his assessment of the appellant. This assessment caused his
Honour, in a number of respects, to discount the appellant's evidence and contentions made on her behalf.
He described the appellant in the witness box as "far removed" from a person described by her counsel as
leading a tragic life; he concluded that she had, to some extent, exaggerated her post-accident disabilities;
he thought that she had exaggerated her working capacity, for example in mathematics, before the accident
and he was sceptical about the likelihood that her career aspirations would have been realised had she not
had this accident; he thought that, whatever limitations there were upon the appellant's earning capacity after
the accident, they were not due entirely to the consequences of her injuries; and he thought that her working
capacity would improve once this litigation had been resolved.
All of these were conclusions which appellate courts do not lightly disturb and, in my view, no
substantial basis was shown for doing so here. Once they are accepted it cannot, in my view, be said that
the amounts awarded under the above heads of damage were manifestly inadequate.
REASONS FOR JUDGMENT - McPHERSON J.A.
Judgment delivered the 18th day of June 1996
I agree that this appeal should be dismissed for the reasons given by Shepherdson J.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
| Brisbane | Appeal No.207 of 1995 |
| [Ramm v. Fletcher & Ors.] | |
| BETWEEN: |
SVANTJE RAMM
(Plaintiff) Appellant
AND:
MARK RAYMOND FLETCHER
(First Defendant) Respondent
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
| Brisbane | Appeal No.207 of 1995 |
| Before | Davies J.A. McPherson J.A. Shepherdson J. |
[Ramm v. Fletcher & Ors.]
BETWEEN:
SVANTJE RAMM
(Plaintiff) Appellant
AND:
MARK RAYMOND FLETCHER
(First Defendant) Respondent
AND:
GRAEME BOBCAT & TRUCK HIRE (a firm)
(Second Defendant) Respondent
AND:
ALLAN MARK LOCHRAN
(Third Defendant) Respondent
AND:
SUNGOLD PLASTERBOARD SUPPLIES PTY LTD
and SUNGOLD PLASTERBOARD SUPPLIES (a firm)
(Fourth Defendants) Respondent
AND:
FREDERICKSON TRANSPORT (a firm) and
FREDERICSEN'S TRANSPORT (a firm)
(Fifth Defendants) Respondent
AND:
SUNCORP INSURANCE AND FINANCE
(Defendant by Election) Respondent
REASONS FOR JUDGMENT - SHEPHERDSON J.
Judgment delivered 18/06/1996
The plaintiff in this action has appealed against the assessment of her damages at
$239,723-93. The appeal, as argued, was limited to claims that the components for
general damages and future economic loss were manifestly inadequate and unreasonable. The damages were assessed by a judge of the Trial Division, and consisted of the
following components:-
| Pain and suffering and loss of amenities | 45,000-00 |
| Interest thereon | 2,750-00 |
| Past economic loss | 60,000-00 |
| Interest thereon | 1,800-00 |
| Future economic loss | 70,000-00 |
| Special damages | 31,375-88 |
| Interest thereon | 7,060-00 |
| Refund of rehabilitation expenses | 5,738-05 |
| Past Griffiths v. Kerkemeyer | 6,000-00 |
| Future Treatment | 10,000-00 |
| Total | $239,723-93 |
Three other grounds of the appeal concerning interest on past economic loss, and
the claim for interest on the assessment for past Griffiths v. Kerkemeyer were
compromised by the parties.
| (A) | PAIN AND SUFFERING AND LOSS OF AMENITIES |
| The appellant was born on 16 May 1967, and as the learned trial judge found |
received serious personal injuries in a motor vehicle accident which occurred on 5 March
1990. His Honour thought the circumstances of the accident had some relevance to the
assessment of damages and he then made the following brief statement:-
"The plaintiff was driving a Suzuki Sierra soft top (depicted in Exhibit 23) south along the Bruce Highway near Burpengary. At about 9am a collision occurred on the north bound section of the highway (which was divided at that point) between a semi-trailer and a truck; after that impact the truck travelled across the area dividing the north bound lanes from the south bound lanes, and crashed into the plaintiff's vehicle causing the damages depicted in the photographs thereof. Other vehicles were also involved. The plaintiff was trapped in her vehicle for sometime. In the overall incident two other people were killed."
The plaintiff was taken to the Redcliffe Hospital where she was admitted as an in-
patient. She remained there until 7 March 1990, when she was transferred to the Holy
Spirit Hospital in Brisbane. His Honour noted that a report from the Redcliffe Hospital had
shown that on admission the plaintiff had a closed head injury, a fracture of the middle
cranial fossa involving the sphenoid and ethmoid sinuses with concomitant rhinorrhoea,
fractures of the right superior and inferior pubic rami and of the right ilium, plus multiple
abrasions and lacerations. The hospital also noted on admission that the plaintiff had a
Glascow coma of twelve, and a visual field defect. The appellant was an in-patient in
hospital until 21 March 1990. In the Holy Spirit Hospital she came under the care of Dr
Atkinson, a neuro surgeon. Dr Atkinson, furnished two reports and gave oral evidence. In
his first report (dated 8/8/90) (Exhibit 1) he described her injuries resulting from the
accident as follows:-
1. Shock
2. A moderately severe closed head injury.
3. Unpleasant lacerations and abrasions to her right forehead and scalp.
4. Embedded glass in her forehead and in her right hand.
5. Multiple fractures of the anterior cranial fossa of the skull.
6. A cerebrospinal fluid leak.
7. Diabetes insipidus.
8. An injury to the right optic nerve with a right inferior temporal field defect.
9. Diplopia.
10. Fracture of the pelvis passing into the right acetabulum.
In the course of his reasons (delivered on 25/8/95) the learned trial judge dealt with
what the appellant's counsel described as "residual symptoms" of the injuries. I note that
in his reasons (p.511.1) His Honour said - "many of the injuries sustained in the accident
have healed without any long term consequences".
It is necessary to discuss the residual disabilities and symptoms because in his
argument Mr Williams Q.C., for the appellant, has submitted the component in the
damages of
$45,000-00 fails to take any proper account of:-
(a) The plaintiff's residual physical disabilities and symptoms.
(b) The persistence (but with anticipated moderation of symptoms) of the plaintiff's post
traumatic stress disorder and psychogenic pain disorder.
(c) The "loss" of the plaintiff's pre-accident qualification (Bachelor of Economics) and
opportunities.
1. Fractures of the pelvis
Dr William Ryan, the only orthopaedic surgeon concerned in the case provided two
written reports (Exhibit 3 dated 20 September 1990 and Exhibit 4 dated 10 November
1993) and also gave oral evidence. The appellant first came under Dr Ryan's care on 10
March 1990, when Dr Atkinson asked him to treat the appellant. In his reasons for
judgment, the learned trial judge noted that in his first dated report, Dr Ryan considered the
appellant had "minimal symptoms from her orthopaedic injuries", that she had returned to
playing tennis and that he noted no symptoms in the hip despite that strenuous activity. His
Honour said:-
"There was a complaint of pain in the hip after squash. There was full range of hip movement. Dr Ryan concluded she had increased risk of some premature degenerative change in the hip region, and taking that into account, he assessed disability at 15 per cent loss of efficient use of the right lower limb. He considered there was no permanent disability in relation to her right hand. He next examined the plaintiff on 27 October 1993, and on that occasion reported symptoms of pain in the right hip after strenuous activity such as playing tennis. Examination established a full range of pain free movement. X-rays indicated some asymmetry of the pelvis, but the doctor could not establish the origins thereof. Because of the possibility of some degenerative change in the hip joint he again estimated disability at 15 per cent."
Dr Ryan's evidence was not contradicted, and in his oral evidence he said (p.111)
the figure of 15 per cent was "not a hard figure. It's a soft figure, and it's to aid the court and
it's based on the concern about the fracture involving the pelvis". He said "The
degenerative change refers to the hip joint and the concern for the future, which accounts
for the 15 per cent is related to the pelvic fracture which includes the symphysis at the front
and the sacroiliac joint at the back."
After dealing with Dr Ryan's opinion, the learned trial judge said this:-
"Perhaps the most pertinent observations that can be made with respect to the orthopaedic injuries are that Dr Ryan has not seen the plaintiff since 1993, and she has not sought any medical treatment for any orthopaedic condition since her discharge from hospital."
Mr Williams Q.C., criticised this passage in the judgment saying that there was no
suggestion in the evidence that the plaintiff required any further treatment for her
orthopaedic injuries, and no suggestion that further treatment would have benefited her in
any way. He submitted that the above comment by the learned trial judge was one to which
His Honour seem to have attached "some significance". He allied this submission to
similar comments made by the learned trial judge - to which I shall later refer - made, as Mr
Williams submitted, in respect of other disabilities where there was no suggestion of cure available or any treatment which might have alleviated the condition.
2. Scarring
His Honour noted that the appellant complained of scarring to her forehead being a
cosmetic disability. (p.511) In his reasons he went on:-
"but it was difficult to notice any significant blemish whilst she was in the witness-box. I had the opportunity of looking at her forehead close up, albeit at a time she was wearing make-up, and I must say I did not regard the residual scarring as a major disfigurement. Certainly her forehead looked bad during the months immediately after the accident, and one gets the impression that the plaintiff is still dwelling heavily on that. I observed some very mild deformity to her right hand."
I pause to say that the learned trial judge had before him certain photographs of the plaintiff
taken after the accident.
Later in his reasons the learned trial judge reviewed the evidence of Dr Robinson,
a plastic surgeon, who had examined the appellant on 20 September 1990, with specific
reference to her forehead. As His Honour's reasons say:-
"The doctor's examination revealed that almost the whole of the hairless part of the right forehead from the medial end of the eyebrow was covered with multiple small, red, irregular scars consistent with the appearance of multiple lacerations from glass injury. He also noted small pink scars on the right hand and forearm consistent with healed abrasions. There was an irregular, slightly pale area on the outer side of the right arm and a similar area on the side of the left knee, consistent again with healed abrasions. He expressed the opinion that the scars present "a moderate long term cosmetic disability which will improve over the next 1 to 2 years. He did not consider that revisional surgery was likely or recommended, it was his view that there would be some long term moderate cosmetic disability."
His Honour then went on to make the following comment which is one of the two
remaining comments to which Mr Williams referred:-
"Again it is not without significance to note that the plaintiff has not seen a plastic surgeon with respect to any cosmetic defects since September 1990."
It will be noted from His Honour's comments, after having observed the appellant in the
witness-box and looking at her forehead close-up, that there is some disagreement between His Honour and Mr Robinson as to the degree of the cosmetic disability. In 1990,
Mr Robinson was expecting "some moderate long term cosmetic disability" which would
improve over the ensuing 1-2 years. Dr Robinson did not give oral evidence. In my view,
the above comment made by the learned trial judge concerning the plaintiff not having
seem a plastic surgeon since September 1990, really goes to support the learned trial
judge's view that the forehead scarring was not a major disfigurement.
3. Headaches
The evidence at trial showed disagreement between a number of the medical
witnesses as to the cause of the appellant's headaches.
In his reasons for judgment, the learned trial judge referred to the opinions of
Dr Atkinson as contained in his report (Exhibit 1). He noted Dr Atkinson's opinion that the
appellant's recovery was complicated by insomnia, nightmares, headaches, poor
concentration and an impairment of short term memory. As His Honour said "she was
placed on a drug regime because of the headaches and symptom complex that appeared
to be consistent with migraine" (p.507). The learned trial judge then mentioned subsequent
reports by Dr Atkinson to the appellant's local doctor (see Exhibit 45), given after having
seen the appellant on a number of occasions between July (sic-May) 1990 and 27 May
1992 (p.509). His Honour said, "In his last report of May 1992, he noted she continued to
experience headaches with concentration, reading and with working hours. He concluded
there was nothing he could really do about the headaches". Dr Atkinson gave oral
evidence but, as His Honour pointed out, he had not seen the appellant since 1992, and
was unable to comment in detail on the appellant's condition at trial. His Honour said
(p.509):-
"he made it clear that he did not consider that her headaches would be permanent. In his view they were not the result of a brain injury; he thought it possible that some pain areas had been irritated around the base of the skull. He thought that as a result of Dr Edward's testing ... there was a possibility that the pain was supra-orbital neuralgia, and it was possible that it could continue. But in his view, if that was the cause of the headaches they would not be very severe, and the plaintiff should be able to cope readily with them".
I pause to say that at that stage of his reasons, the learned trial judge had made no
finding as to whether or not he accepted Dr Atkinson's opinions as to the cause of the
headaches and their prognosis.
His Honour noted that at the time of the trial the appellant still complained of regular
severe headaches having said in evidence that she had a headache every day since the
accident; that she could not remember a time when she did not have a headache, that
these were relieved by taking analgesics, (named) but they do not result in her being free
of a headache for any period of time. His Honour recorded that in her evidence the
appellant had said she was not prepared to have her supra-orbital nerve cut, unless there
was a 100 per cent guarantee that her headaches would go, and she said that she had
come to that conclusion because the price to be paid was the loss of feeling in part of her
face.
His Honour later mentioned the supra-orbital nerve, and I shall come to that shortly.
The learned trial judge, later in his reasons, referred to the plaintiff having received therapy
from Dr Rice, a specialist in psychiatry and pain management as well as anaesthetics. Dr
Rice did not give oral evidence. As appears from the transcript of the trial proceedings the
appellant's trial counsel agreed to Dr Rice's reports being admitted "on the limited basis
that the opinions stated therein are Dr Rice's opinion" (see p.189). Having referred to Dr
Rice, His Honour said in a lengthy passage which I find necessary to quote:-
"In his first report of 22 November 1994, he stated that he had diagnosed the plaintiff as suffering post traumatic stress disorder, and physiocogenic (sic) pain disorder. He had been treating her, in his view successfully, for those conditions for some time. Some details of the therapy are set out in his report. It is desirable that I set out portions of the report which are of significance for present purposes:
Progress:
This has been excellent with her becoming headache free (or at worst
able to manage her headache), able to travel to visit her family in Turkey
and able to retrain and regain employment, with her employer beingprepared to take her back when she does return from her current trip.
Prognosis:
Pre-settlement:It is likely to lead to recurrence of her anxiety and headaches if she has to go over the history again for any medico/legal purpose.
Post Settlement:
This can be considered to be good in terms of her work prospects in her new career and in pain control. Some ongoing therapy may be required to help her improve how she copes in relationships. ...
Summary:
... she developed the post traumatic stress disorder and headaches of
psychogenic aetiology. Both these syndromes have responded well to
therapy, and it can be anticipated that she will continue to progress well,
with a better prognosis once the stressor of unfinished litigation is
removed and she is not exposed to repeated retelling of the history.
Social condoning of her rehabilitation would be evidenced by settlement
of her litigation and would reinforce her behaviour and improve her
prognosis."
Dr Rice's next report, 21 April 1995, relates primarily to a consultation after the plaintiff had returned from her travels through Turkey, Canada and the United States. On that occasion she said that "her headaches were always present". The doctor noted that another factor that made her headaches worse was that she was worried because she had no current work. He again noted that ongoing use of the treatment strategies had helped her to cope with her pain. Again it is desirable to set out some passages from this report:-
"Opinion:
Her headaches are significantly influenced by life's uncertainties especially factors such as no work which she recognises that she worries about. A major factor in her inability to be certain where her life is going is the presence of unfinished litigation,and this needs to be removed from her list of uncertainties if she is to optimise her rehabilitation.
Previous Report:
During her time away Miss Ramm wrote to me from Turkey
saying she had received copy of my report to you with concerns regarding my comments under 'progress'. She commented in her letter that she
In her case we need you (scil. her solicitor) as part of her
'treatment team' to finalise her litigation so that this factor which gives rise to significant uncertainty and therefore worry can be removed such that she is able to focus on what she can do and get on with the rest of her life.
...
By way of clarification, this does not mean that she does not have headaches, but that there may be periods when she is free as was obtained when she was in regular therapy before her recent trip. She often has recurrence of headaches when she is in a situation that was stressful for her. As is proven to be the case she has been able to use the techniques that he has learnt to assist her managing the pain, although she has had to supplement this with pharmacological therapies as well."
In general I accept the evidence of and the opinions expressed by Dr Rice and his overall assessment of the plaintiff's condition, especially her headaches.
Further in relation to the headaches it is necessary to refer briefly to three neurologists, each of whom gave evidence on that topic. Dr Edwards concluded that she had suffered a severe head injury and he noted that she had total loss of smell in the right nostril and altered sensation in the right forehead. He carried out a procedure involving the injection of a drug into the right supra-orbital nerve on four occasions which resulted in temporary loss of the pain the plaintiff usually described as her headache. The pain recurred after a period of up to three days; thus the treatment was not successful in the long term. He did express the view that an operation to sever that nerve may result in substantially reducing the frequency and severity of headaches, but it would be at the price of numbing part of the plaintiff's face. There was no certainty that such treatment would be successful.
Dr Todman concluded that her headaches were tension-vascular in type with some elements of post traumatic migraine as well as muscle tension headaches. He concluded that they had been resistant to standard treatments and in consequence he said it was difficult to give a prognosis; he suspected that they would remain a long term problem and perhaps be a permanent feature. In his oral evidence he expressed the opinion that the whole headache syndrome could not be attributable to an injury to the supra-orbital nerve. In his view the fact that the injections administered by Dr Edwards had only very short lived benefit indicated that that nerve was only a minor part, and not the dominant factor in the syndrome.
Dr Cameron reported that the headaches "predominantly suggest muscular contraction discomfort related to anxiety following the event." He believed that the headaches could be improved with appropriate treatment and should settle with time. In his view if her anxiety and depressive symptoms were controlled she would be able to complete studies in accounting and progress to qualification as a chartered accountant. In his oral evidence, he accepted that post traumatic stress syndrome could be a factor leading to apparently inconsistent results in psychological testing. In all the circumstances I accept Dr Cameron's views expressed in his oral evidence on the relevance and significance of the testing with anaesthetic injections carried out by Dr Edwards. I also accept the opinion of Dr Cameron that there is an emotional or psychogenic basis to the plaintiff's headaches. In general I accept the comments of Dr Cameron on the significance of the psychological testing carried out by Weston and Wiltshire".
Before proceeding further, it should be borne in mind that evidence at the trial
showed that since her 1990 accident, the appellant's parents have lived in Turkey - her
father is an engineer, working in Turkey - and on at least 6 occasions the appellant has
travelled to Turkey to stay with them. The last of such trips was between November 1994
and early April 1995, when the appellant not only spent time in Turkey but worked there for
some indefinite time, and also travelled to Canada to stay with a friend and while in
Canada, snow ski-ed, she having taken her snow skis from Australia for that purpose. In
his second dated report (21 April 1995 Exhibit No. 22 - p. 295) Dr Rice said, "I refer to my
previous report of 17th November 1994 on the abovenamed. She next attended my office
on 10th April 1995, 5 months after her last consultation. During that time she has been
staying with her parents in Turkey, where she spent sometime studying with an artist, as
well as travelling to Canada, and the United States before returning to Australia".
The learned trial judge's findings set out in the above rather lengthy extract show that
he:-
(a) Rejected the opinion of Dr Atkinson that the headaches were consistent with
migraine.
(b) Rejected Dr Edwards' view that the headaches were caused by damage to the supra-orbital nerve.
(c) Accepted Dr Cameron's oral evidence stating his views on the relevance and
significance of the testing with anesthetic injections carried out by Dr Edwards. The
learned trial judge did not state what those views were, but reference to p. 161 of the
transcript shows that, after reading specified parts of Dr Edwards reports (Exhibits
10 and 11) Dr Cameron said:-
"What Vivian Edwards has found there is that he believes she had what we call a supra-orbital neuralgia. There is a large nerve that comes from the brain up through the back of the eye and comes up over the surface of the frontal region above the eye to the front part of the scalp. It only innervates that area covering about a hand area above the eyebrow. It is a very focal pain, supra- orbital neuralgia. The pain she was complaining of when I saw her was a diffuse cranial pain, different pain altogether. It is conceivable that she may have had some supra-orbital neuralgia when she saw him, but I didn't get a history of that. It is quite conceivable. She has had quite a lot of skull fractures anteriorly and she may have contused the nerve. It may be one component of her headache system."
Dr Cameron agreed that the appellant did have damage to the right optic nerve and
damage to right ophthalmic nerve and that those two nerves and the supra-orbital nerve
were very closely geographically located.
A little later he was asked:-
"So you don't accept the explanation that is the damage to these particular nerves?" and he answered "I accept that one component of headache may be that which didn't come out when I saw her in the examination 3 years or 2 years ago. I accept she may have had a component of that, and I think it is quite reasonable to - if Edward's found it, I will accept his findings. He is a good neurologist. When I saw her though that aspect of her headache was not at all apparent. She had a diffused generalized chronic headache and you can't put all that down to supra-orbital neuralgia as such".
(d) Relied on Dr Todman's opinion given in his oral evidence that the whole headache
syndrome could not be attributable to an injury to the supra-orbital nerve, and the fact
that the injections administered by Dr Edwards had only very short lived benefit indicated that that nerve was only a minor part and not a dominant factor in the
syndrome.
(e) Relied on Dr Todman's opinion, which I have just set out, to support his acceptance
of Dr Cameron's views, expressed in his oral evidence on the relevance and
significance of the testing carried out by Dr Edwards.
(f) Accepted Dr Cameron's opinion that there is an emotional or psychogenic basis to
the appellant's headaches.
(g) In general accepted the comments of Dr Cameron, on the significance of the
psychological testing carried out by Mr Weston and Mr Wiltshire. Although His
Honour does not specifically identify those comments, I note that on pp. 159 and 160
of the transcript, Dr Cameron said that he did have a report dated 1 July 1991 from
Mr Weston. Dr Cameron had earlier referred to inconsistencies between certain
tests he had performed and similar tests performed by Mr. Weston.
At p. 160 he said:-
"The first thing is these tests are all psychological tests of this nature I performed and Michael Weston performed, and are subject to inconsistencies. This is one problem with these studies. There is (sic) certain factors that come in. One of them is anxiety and she may have felt more comfortable with Michael than she did with me. If a person feels distracted or is having a bad day or is anxious or is upset about something they may not perform as well. The mere fact that she performed well 2 years prior shows that she was capable then of doing it, and there should be no reason why she should deteriorate except for some reversible component that has crept into it; like I said, emotional disturbance, anxiety or something extrinsic to the brain function. There is (sic) many other things too that can interfere with tests. If a person is grossly - shows gross variability in their responses you think of some - it could be intentional or could be also - I didn't think that was the case in her presentation, I think she was just probably an anxious young girl".
I must say I did not see any comments by Dr Cameron, on the significance of the
psychological tests carried out by Mr Wiltshire. I think the reference to Wiltshire was an oversight by the learned trial judge - the appellant had seen Mr Weston, some 2 years
before she saw Dr Cameron, on 29 March 1993 and she saw Mr Wiltshire in May 1995.
Having accepted the evidence of and the opinions expressed by Dr Rice, and his
overall assessment of the appellant's condition especially her headaches, it was open to
the learned trial judge to deal, in the manner in which he has, with the evidence of the above
doctors concerning the appellant's headaches and their causal relationship to the accident
and their prognosis.
The learned trial judge having accepted Dr Rice's opinions as above set out, this
Court must accept in particular Dr Rice's opinion that the appellant's headaches are
significantly influenced by life's uncertainties especially factors such as no work, which she
recognizes that she worries about, and that a major factor in her inability to be certain
where her life is going is the presence of unfinished litigation and this needs to be removed
from her list of uncertainties if she is to optimise her rehabilitation. (p. 521) In my view this
is an important finding, because once this litigation is over a major factor influencing her
headaches will disappear.
In my view, on the evidence which the learned trial judge accepted, the appellant's
headaches and their future, do not play a significant part in the pain and suffering
component.
4. Post-Traumatic Stress Disorder
Dr Rice diagnosed this and said so in his report of 22 November 1994, given at a
time when the appellant was his patient in therapy. In his second dated report Dr Rice has
not mentioned post-traumatic stress disorder. Its omission leads to two possible
inferences - one, that it had ceased by then, and the other is that its importance had
vanished by 10 April 1995, when Dr Rice next saw the appellant after her overseas trip. In his second report he concentrated solely on the headaches. This disorder obviously
plays a minor part in the $45,000 component.
5 Personality Changes
The learned trial judge made no particular finding on this aspect. He did note that
Dr Atkinson in his report of 8 August 1990 said, (p.507) "there was probably some change
in her personality;" His Honour also referred to the appellant having given evidence that she
had had suicidal thoughts. (p. 512) Accepting that the plaintiff probably had some
personality change the evidence does not disclose that it was other than mild and probably
not long lasting.
6. Short Term Memory Impairment
Again, the learned trial judge quoted Dr Atkinson's report of 8 August 1990, in which
he said "there was some blunting of her short term memory." (p. 507) His Honour also
referred to the plaintiff having given evidence of short term memory problems. His Honour
made no specific finding on this particular aspect, but it is apparent from a reading of His
Honour's judgment that it was a minor matter, albeit stemming from some brain damage.
It is true that the appellant, on the advice of Dr Atkinson did not continue her studies for at
least one year. There was evidence that when tested by Mr Weston in 1991 the appellant
had no lapses of attention when she completed tests of short term memory functioning and
was able to repeat 8 digits forward and 6 digits reversed and also quickly and correctly
subtract serial sevens. (p. 159-160). The applicant did not perform as well when tested by
Dr Cameron some 2 years later and his explanation for the inconsistencies has been
recorded. As His Honour found, and he treated it as a matter of some significance, the
appellant had undertaken a number of courses since the accident and had not failed any
examination for which she sat. His Honour gave details and I shall mention them when
considering the component for impairment of earning capacity.
7. Inability to Concentrate
Again there is no specific finding, and in my view this aspect of the appellant's
injuries is really in the same class as the impairment of the short term memory.
8. Loss of Vision in Right Eye
His Honour's actual findings were (p. 517):-
"One significant consequence of the head injury is that the plaintiff has a right third nerve palsy and an injury to the right optic nerve causing decreased visual field. This was dealt with by Dr Harrison, an eye specialist. Attached to his report (Exhibit 6) is a diagram indicating the loss of visual field. The third nerve palsy caused double vision, but over a period of time it recovered to such an extent that in his opinion she was "almost fully cured". He said that there was "a very slight residual ptosis (drooping of lid) which I do not believe is noticeable without careful inspection". The visual field loss will not recover any further with time. In the doctor's opinion the plaintiff has lost 30-35 per cent efficiency of one eye. In the course of his oral evidence, he commented on the occasional double vision of which the plaintiff complains; in his view the cause of that is the muscles becoming tired or stressed and in consequence not properly focusing each eye.
The visual defect does not appear to have hampered the plaintiff in the various courses she has undertaken since the accident, nor to any significant extent in her art and design work".
I would add, that in Dr Harrison's oral evidence he made the following points:-
(a) The loss of visual field is to the bottom right and if the appellant were trying to look
at something on her right and down below the ordinary level she may have difficulty,
and to see something in the far right periphery she would have to turn her head more
than the normal person to see in that area (p.52).
(b) Basically, the other eye compensates for a fair degree of the loss as the peripheral
visual fields of each eye overlap to a large degree particularly centrally; the missing
part of the visual field is partly overlapped by the left eye so it is in fact not missing
with both eyes open. (p. 53)(c) The loss of visual field does not hinder her from reading or doing things that involve
the ordinary use of the eyes. (p. 53)
(d) The loss of visual field would not significantly affect the three dimensional effect
unless she happened to glance to the right in an area where she was not able to see
initially. (p.53)
There was evidence from the appellant that since the accident she had been driving
a car from the end of 1990. Dr Harrison was not surprised to learn this and thought that she
is quite safe driving a car.
Effectively then, the evidence was such that it was open to His Honour to find that the
loss of efficiency in one eye is a significant consequence of the head injury, and that the
visual defect does not appear to have hampered the appellant in the various courses she
has undertaken since the accident, nor to any significant extent in her art and design work.
It is noteworthy that His Honour concluded that the visual field defect was the most serious
of the appellant's disabilities resulting from the accident.
9. Loss of Confidence in Driving a Motorvehicle
This was a claim made by the appellant in her evidence. The learned trial judge
made no finding, and in view of the matters concerning the right eye to which I have already
referred, it seems that if the finding of loss of confidence were made, it must surely have
been that such loss was of very minimal duration.
10. Loss of Libido and Painful Periods
In his reasons, His Honour noted that the appellant had claimed "that her periods are
now painful, and asserts that she has lost her libido, she claims to be not interested in sex".
His Honour went on:-
"That is to be contrasted with what she herself said of her pre-accident life
style -
"I used to think life wasn't worth living if you didn't have sex."
Her evidence is that both before and after the accident she did not regard herself as a "marriage type"; she regarded marriage as outdated. She said that both before and after the accident she did not want to have children, and if she did then she would hire a nanny, so that her life style would not be affected thereby. Prior to the accident she had a regular close sexual relationship with the witness Hogg, and that has continued though both claim that their sexual activity is not to the same extent as before the accident. According to each of them marriage was not a topic which was discussed either before or after the accident."
Dr Keeping, an obstetrician and gynaecologist, provided a report (Exhibit 12, p.252)
and gave oral evidence. He examined the appellant on 2 February 1994. In referring to
his evidence His Honour said (p. 516):-
"Dr Keeping dealt with her pelvic injury from the obstetric point of view. He considered that the few bladder infections she has experienced since the accident would be attributable to it. He also was prepared to conclude that her dysmenorrhoea was attributable to the accident; he thought it was likely to continue on a long term basis. He expressed the opinion which was not challenged that the fracture of the pelvis did not create any physical problems so far as intercourse was concerned. He concluded that her alleged loss of interest in sex was not due to any physical injury.
He expressed the view that she may have a lot more discomfort than the average person during pregnancy because of the previous pelvic fracture. He considered there was no major distortion in the shape of the pelvis as would clearly prevent normal delivery; but he thought that it was somewhat more likely that she would have a caesarean section, than was previously the case. That, of course, must be given effect to in the light of her strongly stated aversion to having children."
In her oral evidence (p.44/55) the appellant had said that before the accident she did
not have any problems with her periods or bleeding, and that since the accident she does
not get a regular period, "that's why I am on the pill, and because I am on the pill, I get a
regular period now." She also complained of "having incredibly painful period pains," such
that "the first day is always so bad that I can't even get up out of bed or I have to take a lot
of pain killers."
Dr Keeping's unchallenged evidence is that the period pains and extended period
times were most likely attributable to the accident.
Dr Keeping conceded that as to the complaint of period pain, he had to rely entirely
on the complainant for such a diagnosis. (p. 115/5)
At this stage it is appropriate to comment on the matter of the appellant's credibility.
In his reasons the learned trial judge dealt with two claims for special damages. The first
(p. 523) was an amount of $2,459-94 being increased telephone expenses allegedly
incurred by the appellant in consequence of the accident. Documents were tendered to
evidence that claim. His Honour found that there was nothing to establish to his satisfaction
that the telephone calls were necessitated by the appellant's physical or mental condition
after the accident and he rejected the claim.
The second claim was for $7,180-10 for physiotherapy services rendered by Hogg,
a qualified physiotherapist who normally practised at Noosa. His Honour found Hogg was
the appellant's regular boyfriend prior to the accident and the continuation of that close
relationship since the accident. His Honour noted that for a period post-accident (from 9
June to 11 December 1992) the appellant was employed as a receptionist in his practice.
His Honour said (inter alia) the treatment was given either at the plaintiff's home or at the
Noosa Centre on numerous occasions between 8 March 1990 and 28 April 1995; for
lengthy periods the treatment was on a daily basis. He found that the treatment for which
charges had been made "was far more regular and far more extensive than was
necessary". He went on to say "if there had not been the close emotional relationship
between the two, the plaintiff would not have had such treatment to the extent claimed." His
Honour allowed $3,600 for this particular claim.
These two claims and the manner in which the learned trial judge dealt with them
show that His Honour thought the plaintiff's evidence could not be entirely relied on in all
aspects of her case. It is not unfair to say that in respect of those two claims he thought she
exaggerated. That being so, the extent of the period pain as claimed should be
considered as less serious than the appellant claimed particularly when, in this multiple
injury case the learned trial judge made no express finding concerning it.
The irregular periods are kept under control by use of the pill.
His Honour made no specific finding on the claim as to loss of libido. The
uncontradicted evidence of Dr Keeping was that it was not due to any physical injury - Dr
Rice did not mention loss of libido - it may be safely inferred that such a complaint had no
psychiatric nexus with the accident.
In light of His Honour's finding concerning the relationship of the appellant and Hogg,
it seems to me the learned trial judge assessed damages on the basis that the claim for
loss of libido was not established. Even had it been established it is difficult to see that,
in the light of the learned trial judge's findings as to the continuation of the sexual
relationship with Hogg, it can be anything other than a minor component in the award of
general damages.
11. Diabetes Insipidus
The learned trial judge was satisfied that as a result of the accident, the appellant did
suffer a partial form of diabetes insipidus. Dr Bartley, an endocrinologist, examined the
appellant and gave a report dated 11 February 1991 (Exhibit 7 - p. 239). He did not see
her then for 4 years. His opinion in 1991 was that the diabetes could be expected to
gradually improve, or at worst be treatable with a tablet. His Honour noted in his reasons
that Dr Bartley was still of the view that the condition may further remit. It was in this area
that the learned trial judge made the third of the comments to which Mr Williams has taken
exception when he said (p. 518):-
"Again it must be recorded that the plaintiff has not sought any treatment over 4 years for this condition, and in the circumstances it is not of major significance."
This finding was open to the learned trial judge.
A reading of Dr Bartley's evidence, shows that the appellant's claim at trial, that at
night she wakes up with the need to drink and pass urine, would be quite inconsistent with
the usual course of events and would be unassociated with trauma. (p. 88) Dr Bartley, went
on to say that diabetes insipidus is very rare, and most commonly occurs in children with
sudden onset, and it does occur in adults.
The consequences of this partial form of diabetes cannot have played a major part
in the component of $45,000.
12. Increased Risk of Epilepsy
This risk is in the order of 3 per cent and is minor.
In the course of his submissions, Mr Williams submitted that the $45,000 assessed
for pain and suffering and loss of amenities should be increased to at least $75,000. He
stressed that the appellant has suffered organic brain damage in the accident. As he
correctly pointed out, Dr Cameron, a neurologist, called by the respondent conceded this
fact. In cross-examination he did not deny that she had had "some organic brain damage"
(p.166); he admitted that the poor memory which he had described in his report was
attributed to temporal lobe damage, and that on one specific isolated test he had found
some mild short term verbal and recall impairment. (p.164)
In my view, simply to say that a particular person has suffered brain damage as a
result of injuries in a motorvehicle accident does not necessary mean that a high award of
general damages will follow. The assessing tribunal has the task of finding what injuries a particular plaintiff has suffered as a result of a defendant's tort, the extent of those injuries
and their duration. The Tribunal must be careful to see there is no overlapping of damages
for any particular sequelae of the accident injuries, and in my view in this case the learned
trial judge was well aware when he assessed the component for general damages of the
evidence as to brain damage which the appellant suffered.
In summarising his findings as to the applicant's injuries and resulting disabilities His
Honour said:- (p. 525)
"... the plaintiff has made a reasonably good recovery from serious injuries. She has little or no physical disabilities as a result of the accident; the most serious is the visual field defect. Her headaches are largely the product of anxiety and stress, and with the resolution of this litigation her recovery and treatment will be expedited. I am not satisfied that, as her counsel submitted, her life has been wrecked and that she will continue to lead a "tragic life". The young woman I saw in the witness box is far removed from a person so described. "
In my view, the award of $45,000 for pain suffering and loss of amenities was not
inappropriate in this case. The component is not plainly an underestimate such that the
substitution of a proper figure for that component will substantially alter the total damages
awarded i.e. $239,723-93. Elford v. FAI General Insurance Co. (1994) 1Qd.R 258.
| (B) | FUTURE ECONOMIC LOSS |
| Although this component is styled "future economic loss" it is really an assessment |
of the present value of the future loss to be suffered by the appellant, by reason of
impairment of her earning capacity.
The learned trial judge appears to have accepted the evidence from the appellant that after
completing secondary studies in Brisbane, she obtained a Bachelor of Economics Degree
from the University of Queensland, and that her tertiary entrance score obtained in 1985
was 910. Pre-accident in 1990 having completed the economics degree, she had undertaken two courses - one for a Diploma of Education at the University of Queensland
and the other for a Commerce Degree at Griffith University. While studying at the
Queensland University, the appellant had completed a June Dally-Watkins Modelling
Course and had done modelling for pocket money. His Honour appears to have accepted
that the plaintiff was not interested in modelling as a career, and that she also did part-time
work of a waitressing nature.
His Honour found that but for the accident, the appellant would have continued full-
time studies in 1990 completing her Diploma of Education and the first year of the
commerce course at Griffith University. He found that but for the accident she would have
been a full-time student throughout 1991 and 1992. He found she would have made some
part-time earnings during that period, but that they could be off set against her actual
earnings in the period from the date of the accident to date of judgment. He assessed pre-
trial economic loss limited to a period of 2 to 2½ years. He said, "Given all of the evidence
as to her earning capacity in a number of occupations, it is reasonable to conclude that in
the first 2 to 2½ years in full employment she would have received a net income of
approximately $60,000," and he then assessed past economic loss at that sum. No
complaint is made as to these findings.
As to what he called future economic loss which he described as "equally difficult to
assess", His Honour said (p. 526):-
"In the light of the findings of fact already made it follows that the plaintiff's earning capacity has not been totally destroyed. It was submitted on her behalf that she would only ever be a "humble part-time worker," but I am not satisfied on the evidence that such is the case. The major factor preventing the plaintiff from earning at the present time is lack of motivation and that is not entirely due to the consequences of the accident. The plaintiff has a number of skills which can be put to income earning use. She has an Economics degree, qualifications in graphic art and significant computer skills. There are clearly a number of job opportunities available to her and with further therapy, particularly from Dr Rice, I have no doubt that she will in the near future find satisfying employment. Within a further short space of time the probability is that she will be earning relatively close to her pre-accident earning capacity. As already stated, I am by no means satisfied on the evidence that she would have earned income as a Chartered Accountant practising in her own right. Doing the best that I can on the evidence, I assess her future economic loss as being of the order of $100 per week over 20 years, after making all due allowances for the normal discounting factors. I allow $70,000 for future economic loss."
(The underlining is mine)
In the above passage, His Honour has referred to earlier findings of fact from which
he found that the appellant's earning capacity had not been wholly destroyed.
Because of the attack made by Mr Williams on this component, it is appropriate that
I set out His Honour's earlier findings (p. 513):-
"The plaintiff gave evidence that having obtained her Bachelor of Economics she wanted to obtain a degree in commerce so that she could become admitted as a Chartered Accountant, and then set up her own company, which would carry on the business of advising other companies as to the most efficient way of running their business. Much evidence was led as to the availability of positions as a Chartered Accountant, but in the circumstances that evidence in my view is not all that critical. The fact of the matter is the plaintiff had not settled into a permanent income earning occupation prior to the accident, and there is no certainty she would have but for the accident earned income for the rest of her potential working life as a Chartered Accountant. Like much of the plaintiff's evidence her account of her future intentions immediately before the accident was divorced from reality. I am by no means satisfied on the whole of the evidence that she was such a whiz with mathematics as she sought to make out. Her secondary school and university results do not clearly establish that. The fact that she was doing a Diploma of Education in the year of the accident hardly fits with her stated ambition to be a self-employed Chartered Accountant.
It is a fact, that because she was unable to study for a year or so after the accident she discontinued her commerce course at Griffith University. That was effectively a pre-requisite for her becoming a Chartered Accountant.
But what is, in my view, of much greater significance, is that the plaintiff has undertaken a number of courses since the accident and has not failed any examination for which she sat. She has passed computer courses, and associated courses in desk top publishing. She undertook a course at Morningside in Visual Art and Design and obtained the certificate. She also undertook a course in computer graphics and has obtained certificates in both desk top publishing and computer graphics. She is most of the way through a Diploma in Commercial Art, which is a correspondence course; she has not failed any subject as yet. She has also partially completed a Diploma Course in Practice Management. Again she has not failed any test for which she sat.
The fact that she has been able to pass such a variety of courses indicates that she has considerable earning capacity in a variety of fields. The problem seems to be that she has been unable to settle on any one particular area of interest as her chosen occupation. I am by no means satisfied that that is a consequence of the injuries she sustained in the accident. She has had a number of trips to Turkey to visit her parents, and on at least one occasion worked there for period. Her whole life style and disrupted family life is impacting on her capacity to settle into remunerative employment. Whilst, for reasons which will appear later there has probably been some diminution in her pre-accident earning potential as a result of the injuries she sustained, that diminution is not in my view great."
The underlined passage is one to which Mr Williams Q.C. took exception.
In my respectful view, the findings which His Honour made were open on the
evidence. It was open to His Honour to infer that if the accident had not occurred, she
would on the balance of probabilities not have become a Chartered Accountant. Mr
Williams has fastened on the $60,000 for pre-trial impairment of earning capacity as
indicating that His Honour, must have accepted that the earning rate to attain that figure
($24,000 to $30,000 per annum net) was that of an Accountant. He relied on Exhibit 51,
(p. 394) being a document from Douglas Heck and Burrell, Chartered Accountants, but the
learned trial judge did not say the source of evidence from which he calculated the
$60,000. Apart from a letter from the Accountants, His Honour had other evidence as to
award rates in other fields during the relevant period (see for example Exhibit 52
concerning award rates payable to secondary school teachers, and Exhibit 53, containing
the Teachers' Award - State); the figures appearing in Exhibits 52 and 53, appear to be
reasonably consistent with the figures appearing in Exhibit 51.
I return now to the underlined passage in the extract from His Honour's reasons to
which Mr Williams has taken exception. In my respectful view, this passage must be read
bearing in mind the impression on the learned trial judge made by the appellant. I have
already mentioned the aspect of exaggeration from which it can be safely inferred that the
learned trial judge believed he could not accept entirely everything which this appellant
said. She had said that the company which she proposed to set up should be known as
"Let's be Critical", and as His Honour said, it would advise other companies as to the most
efficient way of running their businesses. This was her stated intention immediately before
the accident, and at a time when she was studying or about to commence studying for a
Diploma of Education. The learned trial judge was in a far better position than this Court
to determine matters of impression and credibility. It appears from a fair reading of His
Honour's reasons, that His Honour took the view that this 22 year old young woman had
fanciful expectations or intentions about her future business "Let's be critical." In my view,
this approach was open to him.
As to the future, Mr Williams basic argument is that her earnings from computer
graphics will be such that the award for loss due to her impairment in earning capacity as
a result of the accident injuries must be much higher than $70,000. Mr Williams relies
heavily on evidence that the appellant sought work after she had obtained her various post-
accident qualifications or certificates to which His Honour had referred, and received only
one poorly remunerated short term job involving telephone selling from home.
In 1994 the appellant was living at Noosa with Mr Hogg, and from some time in
November 1994 until early April 1995 was overseas in Turkey, Canada and the United
States.
His Honour's finding that the major factor preventing the plaintiff from earning at the
time of the trial was lack of motivation, and that was not entirely due to the consequences
of the accident (which finding I have underlined) was in my view, open to His Honour on the
evidence (see p.526). When Dr Atkinson, who was called by the appellant, gave evidence
he did say that he thought the appellant would be competent to go back to University, but
the problem was motivation and that she didn't seem to have that motivation. He went on
to say, "just what factors influence that motivation are difficult to find, I don't think they are
just medico legal".
Mr Williams has pointed to the evidence of Mrs McPherson, the senior lecturer at the
Commercial Art Training Centre at Spring Hill. He relied particularly on her evidence of
earnings by what were called graphic artists. He further submitted that the appellant could
not be properly described as a "graphic artist". Mrs McPherson had been working as a
graphic artist for about 25 years, had run her own businesses, and worked in advertising
agencies both as a graphic artist and a manager of graphic art studios. She viewed one
of the Exhibits which was a portfolio of the appellant's work. Of it she said, "It is of a
professional standard. I would consider that the person who produced that work would not
have any trouble getting work in the industry particularly on computer" (p.217-8). When
asked why she said "particularly on computer" she answered, "there appeared to be a lot
of computer generated work in that folio". When asked what type of employment that led
to, and in what sort of place she answered:-
"that person could be employed in a variety of different places from graphic art studios to agencies. Places like Queensland Museum employ graphic artists, private retail institutions. I think at last count we counted about 47 different types of environments that a graphic artist could work in including television".
She said the sort of salaries paid in those places were as follows:-
"A person leaving college would earn in the vicinity of $20,000 a year.
Someone with 2 years experience about $25,000 a year. Someone with 5
years experience around $35,000 and then 10 years experience anywhere up
to 50 sometimes more than $50,000." (p. 218)
An art director could earn around $45,000 a year upwards. In cross-examination she said
there was a demand for people with computer skills, and added:-
"There is a lack of available staffing for artists who have both computer skills
and design skills." (p. 218/50)
She was there referring to full-time and part-time positions. When asked about the hourly
rate for part-time work, she said a junior starting would be earning $12 to $15 per hour, an
average rate would be between $30 and $50 and she went on to say "$40 is about the
average". (p. 219)
In my respectful view, when the evidence of Mrs McPherson is considered then,
bearing in mind that she had seen the appellant's portfolio, and recognized that it contained
a lot of computer generated work, the only sensible interpretation that can be placed upon
Mrs McPherson use of the phrase "graphic artist" is that the phrase includes persons
capable of preparing graphic art for use on a computer. This accurately describes the
appellant's qualifications. Apart from the evidence of Mrs McPherson, His Honour had
before him evidence from Mr Enwright, a director of a company operating as Marketing
Communications Consultants. He had had experience in employing commercial artists,
graphic artists, and people skilled in computer graphics. Mr Enwright saw the appellant's
progress using her qualifications as depending on her level of talent. He did not see her
portfolio. Assuming she had some talent, he thought the starting salary would be around
$20,000 per annum, "but if one were quite quick and quite a competent user of desk top
publishing software, and Quark Xpress they could increase their income above that level
fairly quickly ...". (p. 213/55)
He thought they could be earning as much as $35,000 to $40,000 per annum, if they
were very competent and quick in utilizing software packages. He went on to give
evidence as to earnings by art directors; he said that the earnings of which he had been
speaking were applicable in the field of computer graphics, which were described to him
as "the use of computers to set up logos and business cards and letterheads and
brochures - things of that kind". He described that as being in the area of a combination
of either graphic design or art design. The portfolio exhibit shows such items.
At the end of the day, it is apparent that the learned trial judge, as best he could,
calculated the likely future weekly loss to the appellant by reason in the diminution in her
earning capacity as a result of the accident injuries. It should be borne in mind that the
$100 per week fixed by His Honour is a figure nett of tax.
I am not persuaded that the $70,000 for future impairment of earning capacity is an
underestimate, let alone an underestimate with which this Court should interfere.
I would dismiss the appeal with costs.
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