Robinson v Heslop (Formerly Hanson)

[2003] NSWCA 275

CITATION:	ROBINSON v. HESLOP (FORMERLY HANSON) [2003] NSWCA 275
HEARING DATE(S):	11/08/03
JUDGMENT DATE:	26 September 2003
JUDGMENT OF:	Beazley JA at 1; Ipp JA at 49
DECISION:	Appeal dismissed with costs.
CATCHWORDS:	CATCHWORDS: DAMAGES - personal injury suffered in motor vehicle accident - liability for negligence - quantum - damages for non-economic loss, past economic loss, future economic loss, future out of pocket expenses - self-employed (respondent) assessed as employee by trial judge when assessing future economic loss - whether admit new evidence on appeal - failure to adduce evidence - Jones v Dunkel inference - award excessive
CASES CITED:	Graham v. Baker (1961) 106 CLR 340 Medlin v. The State Government Insurance Commission (1995) 182 CLR 1 Sullivan v. Gordon (1999) 47 NSWLR 319
PARTIES :	PAUL VINCENT ROBINSON (Appellant) FIONA HESLOP (FORMERLY HANSON) (Respondent)
FILE NUMBER(S):	CA 40507/02
COUNSEL:	J.D. Hislop QC/P. Gormly (Appellant) I Wales SC (Respondent)
SOLICITORS:	Turner Whelan (Appellant) Lough & Wells (Wollongong) (Respondent)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	206/99
LOWER COURT JUDICIAL OFFICER :	Phelan DCJ

CA 40507/02

BEAZLEY JA,
IPP JA

26 September 2003

ROBINSON v HESLOP (FORMERLY HANSON)

FACTS

The respondent sustained injuries in a motor vehicle accident on 4 June 1996 when the appellant’s car collided with the respondents. The appellant admitted liability and the matter proceeded for assessment of damages only.

HELD per Beazley JA

(i) As the trial Judge has found that the respondent’s complaints were genuine, and thus rejected the two appellant’s experts’ views that the respondent was ‘feigning her symptoms’, it was apparent that his Honour rejected their medical opinions. In the circumstances there was no error in failing to refer to these reports for his reasons.

(ii) At trial the appellant only tendered two medical reports and did not call oral evidence. The appellant failed to cross-examine any of the respondent’s medical experts except one, Dr. Schlesinger, who was examined about matters not in contention. It failed to tender other medical reports. In the circumstances, it has failed to mount any effective challenge to the respondent’s medical evidence.

(iii) The awards for economic loss were all within an appropriate discretionary range and were supported by the evidence.

(iv) The award made for non-economic loss was made within an acceptable discretionary range given the significant and substantial interference he accident caused and impacted upon the respondent’s life.

ORDERS

1. appeal dismissed with costs.

CA 40507/02
DC 206/99

BEAZLEY JA
IPP JA

26 September 2003

ROBINSON v. HESLOP [FORMERLY HANSON]

JUDGMENT

1 BEAZLEY JA: The appellant appeals from the damages awarded to the respondent by Phelan DCJ in proceedings brought by her for damages following a motor vehicle accident on 4 June 1996. Liability was admitted in the proceedings and the matter proceeded before his Honour for the assessment of damages only.

2 His Honour assessed damages in the sum of $606,621. The appellant contends that the awards for non-economic loss, past and future economic loss and future out of pocket expenses were excessive.

Background

3 The plaintiff was born on 26 October 1965 and was aged 30 at the date of the accident. She completed school part way through Year 11 and in July 1982 commenced a hairdressing apprenticeship. She apparently had always harboured an ambition to be a hairdresser since she was a small girl. She completed her apprenticeship in 1984. Within a short time she was winning major hairdressing awards. In 1985 she won first place in the Work School Regional Hairdressing Award. In 1987 she came first in the National Work Skill Olympic Ladies Hairdressing and was chosen in the Australian team. In 1988 she won the IMB Young Achievers award and in the same year she participated in the World Skills Olympics where she won the Taiwanese National Championships and came fourth in the international competition. She was awarded the Big Brother Movement Scholarship in 1988 and in 1989 studied in London for 6 months. Thereafter she continued to win major hairdressing awards. In 1991 she commenced her own business in Corrimal on the South Coast. That business was very successful and the salon won a number of prestige hairdressing prizes. His Honour found that the respondent “was highly successful in her profession and was seen to be among the top hairdressers in this country and, indeed enjoyed some international success”.

4 The accident occurred on 4 June 1996 when the respondent was driving her vehicle north on the Princes Highway near Waterfall. The appellant’s vehicle, which was travelling in the same direction, collided with her vehicle forcing it into the guardrail. The respondent’s vehicle then became airborne and rolled about 80 metres down a steep slope.

5 The appellant has little recollection of the accident from about the time her vehicle hit the guardrail. She recollects that it turned once and her next recollection is when she was at the bottom of the cliff. The appellant was conveyed by ambulance to Bulli Hospital where she remained for some hours. Her immediately obvious injuries were a cut to the back of her head which required stitches, bruising and general numbness. She also said that her head was pounding. In the days immediately after the accident she had severe bruising down the right side of her body.

6 The appellant had 4 days off work. On her return to work she noticed that she had problems with her neck, her arm and her shoulder. She noticed that these problems began to impact on her work and she was not able to do the same amount of hairdressing as she used to. She had physiotherapy over an 18 month period, cortisone injections and anti-inflammatory medication, but when she did not get any sustained improvement, she was referred to a rehabilitation doctor, Dr. Ganora. From her history, his clinical examination and a review of the radiological evidence he considered that she had “injured her cervical spine in the motor vehicle accident described, causing pain in the neck radiating to the shoulder and impairment of right C6 nerve root function as a result of disc injuries in the C4/5 and C5/6 region”. She needed on-going treatment at that stage (1999).

7 His Honour accepted that the principal issue in the case related to the assessment of economic loss. He approached this issue by referring first to the appellant’s work history post accident, a matter to which I shall return, and a consideration of the medical evidence. His Honour reviewed the evidence of the various doctors who had treated the respondent or to whom she had been referred for medicolegal assessment. In approaching his task in this way, His Honour observed that “there has been very little by way of medical issue in this case”. The medical issues, however, have turned out to be a central issue on the appeal.

8 Although the hospital records were not in evidence, it appears that the respondent’s initial presentation at hospital did not indicate any serious injury apart from the significant cut to her head. However, over the following months she had numerous symptoms which required her to seek extensive medical attention and she had a number of investigations of her shoulder and neck. On 8 October 1997 an isotope CAT scan revealed mild active arthritis in the respondent’s right acromioclavicular joint. An x-ray taken on 22 October 1997 indicated there was limited flexion in the upper neck and limited extension on functional views. On 27 October 1998, the respondent underwent an MRI of the cervical spine which showed decreased signal intensity in the C5/6 disc which, Dr. Deveridge, orthopaedic surgeon, considered was consistent with mild degeneration or desiccation. The MRI also revealed small disc protrusions at C4/5 and C5/6. There were indentations of the thecal sac at both levels. Dr. Deveridge expressed his opinion that taking into account the respondent’s age and occupational background, the protrusions were abnormal and pathological.

9 Dr. Deveridge was of the opinion that MRI studies of her right shoulder undertaken in March and August 1998 supported the presence of a supraspinatus tendonitis with partial tear and scuffing, as well as subdeltoid and subacromial bursal fluid collection. A repeat ultrasound of the right shoulder on 14 July 1999 showed a possible impingement of the supraspinatus tendon as well as sonographic evidence of chronic subdeltoid and subacromial bursitus. An earlier ultrasound taken in December 1997 had appeared normal. Dr. Deveridge expressed the view in his report of 19 May 2000 that the respondent was permanently unfit for the usual tasks of a hairdresser. He considered her fit for a supervisory role but noted that she would need a break from bookwork and computer operations at regular intervals. Dr. Deveridge was of the opinion that her disabilities were permanent.

10 Dr. Goldberg, orthopaedic surgeon, diagnosed a chronic soft tissue injury to the neck and shoulder girdle. He doubted that she would ever return to her previous occupation and considered that she would have a permanent interference with her quality of life. Dr. Sonnabend, Associate Professor of Orthopaedic Surgery UNSW, and Dr. Davies, Neurosurgeon, were of a similar opinion. Dr. Davies considered that the respondent also needed household help of about 3 hours a week and thought this could be needed on a long term basis. Dr. Tamhane, ear, nose and throat specialist, diagnosed a temporomandibular joint dysfunction as a direct result of her injuries. He also considered that this was responsible for the blocking sensation in the right ear, of which she complained post-accident. He said that the dysfunction was difficult to treat and sometimes would cause acute pain. Dr. Tamhane was also of the opinion that the respondent’s diminished smell on the right side was a result of the accident. He noted that this condition could be annoying and stressful and was permanent but would not cause her much trouble because her sense of smell on the left appeared normal.

11 The respondent had psychological problems after the accident which were on-going. There was an issue before his Honour as to whether she was suffering some mild diffuse brain damage.

12 Mr. Cipriani, clinical psychologist, considered that the respondent was suffering significant trauma which remained sub-clinical. The psychological testing administered by him showed a consistent verbal learning and memory impairment although not a significant intellectual impairment. He considered she suffered “Post-concussional Disorder resulting in attention and memory problems, fatigue, disordered sleep, irritability, depression and affective lability, and Post-Traumatic Stress Disorder (sub-clinical) which may be contributing to the Post-concussional Disorder problems”.

13 Dr. Schlesinger, psychologist, and Dr. Jolly, psychiatrist, each independently agreed with Mr Cipriani’s assessment and attributed these problems to the accident. Dr. Jolly further commented that the respondent had “marked elements of post traumatic stress and depression of mood”. He did not consider that she would fully recover. In particular, he considered that the respondent’s “lack of mental acuity [and] her inability to handle more than one concept in mind over the same short period of time” were of particular concern. It should be noted, however, that an MRI showed no evidence of brain damage.

14 Dr. Dragutinovich, psychologist, from whom the respondent had been receiving counselling, expressed similar views.

15 An issue was raised by the appellant’s medical experts as to the respondent’s genuineness of presentation. However, the trial Judge found her a witness of truth and considered that her presentation was genuine. That finding is not challenged.

16 After the accident the respondent continued on in her hairdressing business. In April 1998, Dr. Goldberg recommended that she be sent to a pain clinic and have a course of job-retraining, as he doubted “whether she would ever [be able to] return to her previous occupation as a hairdresser”. The respondent eventually accepted this advice in October 1998. As a result of ceasing to do the hairdressing work herself, the respondent’s salon lost clientele. In addition, she lost senior staff, two of whom set up in competition against her nearby. In her evidence she directly attributed this to the fact that, having retreated into a managerial role, this impacted upon the attitude of her staff. The respondent also had difficulties in a managerial role because of the problems she was experiencing with her memory. She needed to write notes for herself as a memory aid. She also had trouble working on a computer for a long periods. Her mother was required to give her assistance. She also found she was short tempered with staff and family, which the respondent thought was due to her pain and headaches and discomfort following the accident.

17 In addition to the above injuries and disabilities, the respondent suffered an injury to the muscle around her right eyelid area, leaving the right eyelid asymmetrical with the left. She underwent surgery to the right eyelid, with effective results.

Non economic loss

18 His Honour assessed non-economic loss on the basis that the respondent’s injuries, loss and disability were 40% of a most serious case.

Economic loss

19 In assessing economic loss his Honour took a different approach in relation to past and future economic loss. In relation to past economic loss, his Honour approached the award by considering the earnings the respondent made from her salon business together with earnings he found she was likely to have made from presentation work. His Honour assessed future economic loss by assessing the respondent’s potential as an employee. He noted that this was not her ambition but gave a better indicator of reduced economic capacity. He observed that assessing her damages on the basis of her employing a substitute hairdresser in the salon “has been recognised as defective”.

Challenge to the trial judge’s verdict

20 The appellant submitted that in awarding the respondent damages on the basis of 40% of a most serious case, his Honour failed to give adequate reasons. It was submitted that that assessment was, in any event, excessive. It was submitted that the reasons were inadequate because of his Honour’s “unusual technique” in considering the medical evidence, whereby he quoted significant portions of it but did not make any express findings. The appellant further submitted that his Honour “ignored the defendant’s medical evidence in relation to relevant matters”. In particular, senior counsel for the appellant referred to the evidence of Dr. Matheson, neurosurgeon. Dr. Matheson, who saw the plaintiff in January 2000 stated:

“There are two things that I am quite certain of here; the first is that there is no cervical problem present and no cervical injury and the second is there has been no significant concussion injury or brain damage. These are quite clear. [The respondent] showed a number of ingenuine features including her right arm weakness and sensory loss which are clearly not present and this raises the question of the veracity of her entire history at this stage. It is hard to imagine that there is any residual problems from this accident. There may or may not be a local shoulder injury in terms of some tendonitis, but whether this could be reasonably related to the accident or not I would have to leave to orthopaedic assessment. Allowing for the possibility of there being some shoulder disorder on the right side, there is certainly no disorder as far as her neck or her brain is concerned and a full recovery from this accident.” (sic)

21 The appellant’s complaint that his Honour failed to make any findings on the medical evidence is understandable. However, I think it is clear what his Honour was doing. The appellant tendered medical reports from two experts, Dr. Matheson to whom I have just referred and Ms. Chadwick, a psychologist. Both those experts expressed a strong view that the respondent was feigning her symptoms. His Honour found otherwise. It followed, on that finding, that the opinions each expressed as to the respondent having no disabilities would not be accepted by his Honour because each opinion was based on a premise contrary to his Honour’s expressed finding that her complaints were genuine. It would have been preferable, of course, for his Honour to state that expressly.

22 Next, and this is significant, the appellant failed to cross-examine any of the respondent’s medical experts except Dr. Schlesinger. In a report of 7 April 2000, Ms. Chadwick was scathing of Dr. Schlesinger’s methodology. However, over a 4½ page transcript of cross-examination of Dr. Schlesinger, there was no challenge to his methodology at all. Such challenge as was made to his evidence did not touch any of the features which are now prominently advanced on behalf of the appellant, except for reference to the respondent having undergone a brain scan. In that regard the cross-examiner referred first to a CT scan, then to an MRI but did not cross-examine Dr. Schlesinger on the result of either a CT scan or an MRI.

23 There was therefore no challenge to the respondent’s medical evidence on the critical issues that the appellant now wishes to challenge other than by way of the tendering of reports containing contrary opinion based upon a premise not accepted by his Honour. In addition, the appellant had obtained reports from three other experts, an orthopaedic specialist, a psychiatrist and a shoulder specialist, but those reports were not tendered in evidence. His Honour did not make any mention of these reports but, as the respondent submitted, the respondent was entitled to an appropriate Jones v. Dunkel inference due to the appellant’s failure to adduce the evidence.

24 It follows in my opinion, but subject to a matter to which I will refer in a moment, that the appellant’s detailed challenge to the medical evidence quoted by his Honour would not cause this Court to interfere with what was clearly his Honour’s findings on the medical evidence.

25 The one matter about which there could be some argument related to the question of brain damage. As I have already said, according to Ms. Chadwick, an MRI showed no evidence of brain damage. His Honour referred to this but did not otherwise comment on it. Although this issue developed some momentum during the course of the argument, it needs to be assessed having regard to the evidence. The only reference to a brain scan in the medical evidence appeared to be contained in the report of Ms. Chadwick. That reference itself was second-hand. In her review of the respondent’s case she stated at para. 4.3 of her report that:

“Dr. Chan also comments on a cerebral CT brain scan as being normal.”

26 There was no report from Dr. Chan. Dr. Matheson did not comment on any cerebral CT scan or MRI. Against this evidence, such as it is, are the comprehensive reports of Dr. Jolly as well as those of the respondent’s treating and expert psychologists. Dr. Jolly expressed the view that the respondent was probably suffering from brain damage. In dealing with the question of brain damage his Honour was clear in his identification of the issue as being whether there was any “mild and diffuse brain damage”. I have already indicated that this Court should accept that by quoting large portions of the medical evidence his Honour accepted the evidence thus quoted. In the absence of any report from Dr. Chan, psychiatrist, and in circumstances where the MRI report was not tendered, this Court should find that the appellant’s case that there was no brain damage has not been made out. There was another factual issue which was raised in relation to the question of whether the respondent suffered brain damage. The appellant submitted that brain damage was unlikely given that the respondent was only unconscious for a minute. The respondent contended that this was not an accurate reflection of the respondent’s evidence in which she stated that she was unconscious for a period. That account was not challenged in cross-examination.

27 In my opinion, this Court should accept that the respondent had the injuries and disabilities which were recorded in the various medical reports that were quoted by his Honour. It follows that the challenge to the bases upon which his Honour assessed non-economic and economic loss have not succeeded. The next question is, whether on that evidence, the awards which his Honour made were excessive.

Challenge to award for past economic loss

28 His Honour approached past economic loss by finding that following the accident the respondent had suffered an annual loss from her business of about $7,000 gross. He assumed that that amount should be reduced by about one third for tax. That yielded a figure over a 6 year period of $29,000. His Honour then took into account the fact that the respondent had been offered an option of doing twelve monthly presentations for Schwartzkopf at $1,500 per month. His Honour noted that although the letter of engagement did not say that it would continue, his Honour found that “on the probabilities that that or something like it in her case, would have followed”. His Honour found therefore that she had lost that contractual work since the beginning of 1999. Again, he deducted one third for tax and that produced a figure of $41,000. His Honour then awarded the respondent the combination of both losses totalling $70,000 nett. He considered that award was probably conservative.

29 The appellant contends that there was no evidence to support a finding that an offer to do presentations had been made or that if made it would have been accepted. Nor was there any evidence that any such offer, if made, would have been for more than 12 months.

30 The “Schwartzkopf” offer, referred to by his Honour, was contained in a letter from, Mr. Fletcher, the State Sales Manager of Schwartzkopf Professional. In that letter Mr. Fletcher stated that the respondent had had “contract training” with Schwartzkopf commencing in January 1996. The training took the form of workshops for other hairdressers or on-stage demonstrations at events such as Hair Expo. In the period 1996 to 1998 she had earned $3,500, $1,500 and $2,500 respectively. The letter then continued:

“We were planning to have [the respondent] conduct 12 creative seminars during 1999 (once a month) at an agreed fee of $1,500 per seminar”.

31 Mr. Fletcher also stated that the respondent had become involved in “the National Creative Tour presented by Robert Bowerman”. It was Mr. Fletcher’s understanding that the respondent was to assume responsibility for the national tour before her injury made that impossible. He commented that those tours were very profitable.

32 Mr. Bowerman gave oral evidence before his Honour. He explained the background to the national tours and the respondent’s involvement in them. He said that his “personal take before tax was somewhere between $50,000 and $70,000 for the tour”. That figure was nett of expenses. He said that during the 1990’s he had formed a desire to draw back from that work and to commence to retire. He said that he discussed this with the respondent and had indicated to her that she could take over the tour. He said that arrangements never came to fruition because of the physical disabilities that the respondent suffered in the accident (Black 6).

33 In my opinion, it was open to his Honour to take into account that the respondent was likely to have undertaken some such work. The evidence to which I have referred was evidence that there were such earning opportunities available to the respondent. As his Honour noted, the assessment for past economic loss that he awarded was in any event conservative and there may have been other bases upon which he could have approached that award. In the circumstances, I do not consider that the appellant has shown any error in his Honour’s approach either by proceeding upon wrong facts and/or no evidence. Accordingly I would reject this aspect of the appeal.

34 The appellant also attacked his Honour’s award of past economic loss derived from her loss in the business. He submitted that any loss that her business suffered was caused by the fact that she lost two staff members who commenced separate businesses in opposition to hers. That, submitted the appellant, was the true cause of her loss. Senior counsel for the appellant sought to establish his point by reference to the report of Furzer Crestani Services who produced a report on economic loss for the appellant. In that report they said that an analysis of the records of the business failed to indicate that the respondent had replaced her hairdressing services within the business by other employees. It followed, on the appellant’s submission, that the respondent had “carried on pretty much as normal”. However, none of the propositions contained in the Furzer Crestani report were put to the respondent in cross-examination, many were contrary to the direct oral evidence of the respondent. It was open to his Honour to accept the respondent’s evidence that her injuries affected the business of the salon, that staff problems arose because of her inability to perform and that she had lost clientele because of that inability. The loss of staff members who took clientele with them was seen by the respondent, and accepted by his Honour to be the case, as being reflective of this. There is nothing of substance in this challenge.

The challenge to award for future economic loss

35 His Honour held that an appropriate way to consider the respondent’s economic loss was as an employee. In this regard there was evidence before his Honour as to the earnings of employees with the skills that the respondent had demonstrated pre-accident. That evidence indicated that the respondent would be able to earn anything from $50,000 to $100,000 per year. His Honour considered that the respondent had lost about half her earning capacity. This was within an appropriate range on the evidence accepted by his Honour.

36 The appellant’s primary proposition on this matter was that a party is only entitled to an award of economic loss due to a diminution in earning capacity if it has had an adverse effect on earnings: Graham v. Baker (1961) 106 CLR 340; Medlin v. The State Government Insurance Commission (1995) 182 CLR 1, at 3.

37 The appellant made some criticism of his Honour’s acceptance of the evidence called by the respondent, particularly that of Mrs. Kitching-Downes, observing that the salary of which she spoke of having paid to an employee, was on a profit share arrangement. He also commented that neither Mrs. Kitching-Downes nor Mr. Bowerman knew anything of businesses in Wollongong or of the rates of pay applicable there. He submitted that on the evidence, the appropriate finding was that the appellant would have continued to run her salon and earn the same type of money she had been earning up to the time of trial. He pointed out that there was a clear earning’s record up to and including 1996 and thereafter the earnings continued in a similar range although with some variation up and down in the years following the accident. He particularly observed that in 1997, the year after the accident, the earnings were higher. He submitted, therefore, that what his Honour should have done was simply to have allowed some cushion for the potential loss of the type of presentation work that the respondent might have done for Schwartzkopf or in the national tours referred to by Mr. Bowerman.

38 The appellant also submitted that his Honour erred in only applying a 15% discount for vicissitudes. Senior counsel for the appellant submitted that his Honour failed to factor into the vicissitudes the possibility that the respondent might marry and have children, involving taking time off work and also interfering with her ability to do presentation work either nationally or internationally. The days when counsel can make submissions from the bar table as to what women will or will not do in respect of their working life merely by the fact of marriage and/or having children have long past. If an appellant wishes to increase the discount for vicissitudes by reference to such matters, then it is a matter for evidence. This has been stated by the Court before: Sullivan v. Gordon (1999) 47 NSWLR 319 and should by now be well recognised. The appellant did not cross-examine the respondent on these issues, and accordingly has not established any basis upon which his Honour should have increased the usual discount.

39 It was next submitted that the respondent was a talented person, she had done some work in advertisements and had contacts in the advertising world. Senior counsel for the appellant submitted therefore that once the respondent’s business was sold she was a person with a capacity to earn more than average weekly earnings. It was submitted therefore that it was inappropriate to assess the respondent on that basis. Senior counsel for the respondent submitted that the award of future economic loss was in fact conservative given the potential earnings that she could have made and there should be no appellate interference with it.

40 The assessment of economic loss, both past and future, was not an easy matter in this case. His Honour’s approach was, in my opinion, an appropriate one on the evidence before him. No error has been demonstrated in his Honour’s assessment based on that approach. This was not a case where the trial judge was required to merely award “some cushion for the future”. The submissions put on behalf of the appellant also appear to overlook the fact that his Honour awarded future economic loss on the basis of having lost 50% of her earning capacity, not all of it. It must also be observed that many of the submissions now put so disarmingly on behalf of the appellant were not put at trial or, as I have indicated, were not put to the respondent. In those circumstances, it is not open to the appellant to now rely on them.

41 The appellant next submitted that the assessment of damages for future out of pocket expenses was excessive. In this regard, his Honour allowed $40.00 per week for the future for “massage which give her relief”. It was submitted that his Honour erred in doing so. The submission was put in these terms “It is inappropriate to allow such therapy for anything more than a short period. Long term allowance creates tendencies in the respondent which may hinder the respondent’s opportunity and drive to move on with her life”. The appellant offered no evidence to support this submission.

42 The appellant submitted, alternatively, that if any allowance was to be made other than for a short period, it should not go beyond the respondent’s retirement from work. In this regard, the appellant relied upon the report of John Delaney, remedial massage therapist, who stated that he considered “weekly to fortnightly treatments will be necessary as long as career involvement persists”. He added however, “monthly treatments will be needed in any case, combined with self-management techniques”, and that the “frequency of treatment will depend upon efficacy of self management”.

43 Unfortunately, the appellant’s submission understates the extent of the treatment which the respondent was currently having and his Honour’s approach to the assessment of his award. His Honour approached this matter in the following manner. He observed that as at the date of trial the respondent was having osteopathic treatment every 3 weeks at a cost of $70.00 per session. He also noted the massage at $40.00 per session and referred to the respondent’s evidence that she needed intermittent physiotherapy and from time to time needed pain killers. His Honour stated:

“It is difficult to actually assess the need for osteopathic treatment but certainly the massage gives relief and, to cover that situation, I allow $40.00 per week for the rest of her life, discounted at 15% to produce a figure of $32,507.00.”

44 In my opinion, this was an appropriate way to assess this claim. There were other ways. He could have taken the cost of the treatments the respondent was having and averaged them over, for example, a monthly period, or he could have done a more precise calculation and then made a determination as to whether the treatment would be needed and with that degree of regularity for the rest of her life. On whatever approach taken, his Honour would have had to evaluate the extent of the treatments needed. His Honour chose the simple approach of evaluating the ongoing cost of one type of treatment. The award made has not been shown to be excessive when all treatments are considered.

Non-economic loss

45 That leaves the question of non-economic loss. As I have indicated his Honour considered that the respondent should be assessed on the basis of 40% of a most serious case. That assessment was high, as the respondent readily acknowledged. The question is whether there is any appellable error which would cause this Court to interfere.

46 The respondent met this challenge in two ways. First, she submitted that although the assessment was at the high end of the range, it was not outside an available discretionary determination. Alternatively, she submitted that even if there was error, his Honour had erred in his assessment of the respondent’s loss in respect of future domestic assistance, counselling or medical attention. In support of this part of the argument, the respondent had filed a Notice of Contention in these terms:

“Insofar as the trial Judge erred in assessing the respondent’s non-economic loss at 40%, or erred in his assessment of the respondent’s losses by way of future domestic assistance, counselling or medical attention (which is not conceded), then the respondent contends that the award of past and future economic loss was insufficient, and submits that, on any proper assessment of her past and future economic loss, the extra amount to which she would be entitled more than compensates for any error of the trial Judge.”

47 In my opinion, it is not necessary to determine whether the respondent’s contention has been made out. Although I consider that an assessment of 40% is high, in all the circumstances it was not outside an available discretionary range. The respondent has had a significant interference with all aspects of her life. There was evidence accepted by his Honour that she has brain damage of a mild nature and she has on-going physical disabilities which will interfere with her ability to perform most normal functions of daily life particularly as she gets older. Accordingly, I would not interfere with his Honour’s assessment.

48 Accordingly, I would propose that the appeal be dismissed with costs.

49 IPP JA: I agree with Beazley JA.

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Last Modified: 10/09/2003