State Government Insurance Commission v Wilhelmina Maria Amoroso No. 4207 Judgment No. SCGRG 93/1074 Number of Pages 9 Damages Assessment Personal Injury

[1993] SASC 4207

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA PERRY J

CWDS
Damages assessment - personal injury - Defendant's appeal against award of damages to young female plaintiff injured in a road accident in 1978 - soft tissue 'whiplash' type injury resulting in persisting pain and discomfort in the neck associated with limitation of movement and headaches - plaintiff a stoic personality and did not allow the injuries to interfere to any great extent with her work during the fifteen years supervening between the accident and trial - she received a minimum amount of medical treatment over that period - nonetheless, an award of $6,000 for future economic loss was not shown to be excessive - award of $18,000 for non-economic loss likewise not shown to be excessive - observations as to the undesirability of counsel being invited by the trial Judge to indicate what he or she thought to be an appropriate amount for general damages - further observations as to the propriety of the trial Judge having regard, in assessing general damages at common law, to the scale in the Wrongs Act. Halsbury's Laws of England (4th Ed) page 622 para 1139, considered.
Practice and procedure - interest on damages - Long delay between institution of proceedings and trial - however, the defendant did not show that the delay was attributable to the plaintiff personally as opposed to her legal advisers - unless the plaintiff was personally responsible for the delay, there was no warrant for any reduction in interest, even though such an approach put counsel for the plaintiff in the invidious position of having to contend that his instructing solicitors rather than his client were responsible, and meant that a negligent solicitor would pay less damages if he or she could show that delay was attributable to himself or herself rather than the client. Osborne v Kelly and Anor (unreported) Full Court: Mohr, Bollen and Millhouse JJ, 12.5.93, Judgment No 3926, applied.

HRNG ADELAIDE, 24 September 1993 #DATE 30:9:1993
Counsel for appellant:     Mr D. Stratford
Solicitors for appellant:    Stratford and Co
Counsel for respondent:     Mr J.J. Kernot
Solicitors for respondent: Frank Webster
   and Associates

ORDER
Appeal dismissed.

JUDGE1 PERRY J The appellant appeals against the assessment of damages following a trial in the Adelaide Magistrates Court at which the respondent, who was the plaintiff in the action, was awarded damages arising out of a road accident which occurred on a country road about ten miles west of Mount Gambier on 9 December 1978. Liability was admitted and the case proceeded by way of assessment of damages. The total damages awarded by the learned Magistrate were as follows:
Past pain and suffering     $12,000.00
Future pain and suffering     6,000.00 Future economic loss 6,000.00 Future medical expenses         2,000.00 Past economic loss 862.40 Interest  4,430.00
  $31,292.40 2. The appeal is brought with respect to three components in the award, that is to say, the total award of $18,000 for past and future pain and suffering, the award of $6,000 for future economic loss, and the award of $4,430 for interest. The appellant complains that the allowance of each of those amounts is excessive, and is not supported by the evidence. 3. The plaintiff is a young woman who was aged 16 at the date of the accident and 31 at the time of trial. The accident was a serious one. The plaintiff was a passenger in the right rear seat of a Toyota Celica. She was wearing a safety belt. The car was travelling in excess of 110 kilometres per hour, and on striking a change in the surface of the road, the driver lost control, whereupon the vehicle rolled over several times. She remained in the vehicle, but the driver was thrown out of it and died three days later. The vehicle finished up on its roof. 4. The plaintiff momentarily lost consciousness, but came to, held up by the seat belt, hanging upside down. At some stage she heard a clicking noise in her neck. She said that her head "really hurt". 5. The plaintiff was taken by ambulance to Mount Gambier Hospital where she was admitted for three or four days. She said that while she was in hospital, her neck and arms were very sore, and her "head was full of lumps and bumps". On discharge, she returned home to her parents. 6. At the time of the accident, the plaintiff was working part-time with the Mount Gambier Basketball Association as a receptionist. She remained off work for about three weeks, spending most of the time at home. She wore a neck collar which had been prescribed at the hospital. At that stage, the main focus of her disability was some discomfort in the neck and shoulders. There was also some discomfort in the lower back. She received some physiotherapy treatment, but was unsure of how long that went on for. 7. The neck pain was associated with headaches. Sometimes the headache was severe. She described the headaches as: "It would start off with the tightness and the pain in my neck and graduate around through my whole head, around to the front of my head." 8. Notwithstanding her disability, she thought that she "coped all right" with her work at the Basketball Association. She did not think that she took any further time off after she returned to work following the three weeks at home. 9. After a few months, she took up a position involving clerical work at Softwoods Holdings at Mount Gambier. Although the neck pain and headaches continued, it does not appear that this interfered with her work there. She left that job to take up a position as a full-time seamstress for Fletcher Jones at Mount Gambier. 10. It appears that she took to that work, as after some one or two years with Fletcher Jones, she came to Adelaide where she took up employment involving the same sort of work with Gwynn Jones, a job which she held for between three and four years. After that, she returned to Mount Gambier, doing the same work for Fletcher Jones. 11. It was about the time she married that the plaintiff spent a year with Fletcher Jones in Melbourne, and she then went to Robe with her husband where she worked at a roadside petrol station for several years. That employment was interrupted when her daughter was born. She then spent several months at Cowell on the West Coast before returning to Mount Gambier, where her son was born in 1991. She has remained at Mount Gambier ever since. 12. At Mount Gambier she developed a child care or child minding business, taking in children at home during the day, on week days. 13. Although it is nearly fifteen years since the accident, she still suffers from a degree of pain and restriction in the neck, associated with headaches. She sees a chiropractor about once a month, which gives her some relief. She takes analgesics for the pain and headaches. 14. Although there is little evidence of any loss of work while she worked as a seamstress with Fletcher Jones, it is clear from her evidence that she suffered a good deal of discomfort during that time, and the lack of any substantial interruption to that work is a reflection of her somewhat stoic personality. There is some evidence of absences from work while she was employed with Gwynn Jones. As to that she said:
    "I had time off for headaches, a day here or there, and
    I remember having at one time three weeks off, and I was in a
    lot of trouble with my neck then.
    Q. Apart from that three weeks that you had off during the
    three or so years you worked there, would you be able to
    estimate how many days you were absent from your employment?
    A. Probably around seven days. At the maximum it would have
    been ten days.
    Q. In total?
    A. In total in the whole year...... It would average out
    over the year, and sometimes those days might have only been a
    half day, too, if I went home with a headache." 15. On odd occasions she has been unable to receive a child who was booked with her for minding when her headache has been too bad. It is clear, however, that she tries to avoid letting people down, and persists with the work despite a degree of discomfort. 16. Her evidence with respect to her ability to cope with the child minding work was (43): "If I have got a headache, I don't cope very well at all, or if my neck and in between my shoulders is particularly sore - mainly I sit down with the children when I am like that, unless, of course, one of them has hurt themselves and want to be picked up and cuddled, and then I have problems with that." 17. The plaintiff tendered at the trial reports which were furnished by Dr Charlton who had seen her in the casualty department of the Mount Gambier Hospital following the accident, and reports of two general surgeons, a Mr A.W. Russell and Mr Brian Cohen. The latter two specialists examined the plaintiff in 1992 and 1993. The learned Magistrate preferred their evidence to that of another general surgeon engaged by the appellant, Mr K.P. McKenna. 18. The examinations by both Mr Russell and Mr Cohen revealed a degree of limitation of movement in the neck. Mr Russell elicited what he described as a "an audible click" on rotation of the neck to the left. They both detected a degree of discomfort on extremes of movement. Mr Russell found more evidence to support persisting symptoms of back pain, which he attributed to a jar to her mid-thoracic spine. It is clear, however, from the examinations performed by both specialists that it is her neck which remains the main focus of her symptoms, which are in turn attributable to a soft tissue injury. 19. In dealing with the assessment of general damages for pain and suffering, the learned Magistrate made the following observations:
    "Turning to the question of assessment: it is difficult
    given the Wrongs Act amendments which have affected the Common
    Law in recent years. The working memories of counsel and myself
    agreed that the starting point for assessment of pain and
    suffering for a whiplash injury was about $15,000.00 in the
    early 1980's although defence counsel submits that this was the
    higher end of the range. It was suggested by the plaintiff's
    counsel that a rule of thumb, developed when the Wrongs Act
    amendments came into force, was that those amendments reduced
    damages for pain and suffering to one-third. Insofar as pain
    and suffering is concerned I assess past and future pain and
    suffering at $18,000.00 as her pain and suffering has been
    considerably greater than the pain and suffering in what might
    be termed the 'average' case. If this had been a Wrongs Act
    matter I would have been looking at a numerical value of 6 or 7
    and the plaintiff's counsel's rule of thumb supports an
    assessment in this range." 20. Mr Stratford, who appeared for the appellant before me, contended that that passage is indicative of an error in the learned Magistrate's approach. In particular, Mr Stratford submitted that the suggested "starting point" of about "$15,000.00 in the early 1980's" for an injury of this kind was, in fact, not a consensus at all. It does appear from the passage in the transcript recording a discussion between Her Honour and counsel as to that aspect of the matter that his point as to that is properly taken. 21. Mr Stratford also referred to the fact that Her Honour had invited counsel to indicate how much they thought should be allowed on this head. Mr Stratford referred to the passage in Halsbury's Laws of England, 4th Ed, Vol 3, page 622, para 1139 where it is stated: "It is irregular for counsel to mention the amount of general damages claimed by the plaintiff ....." That comment by the learned author of Halsbury, however, seems rather to relate to a statement volunteered than a statement given in response to a question by the trial Judge. Furthermore, it is an observation which would obviously have more application to cases where there is a trial before a jury. I doubt that it could be said that a trial Judge sitting without a jury commits an error of law by making an inquiry of counsel as to his opinion of damages. Of course, there is a difference between asking his opinion, and how much it is that the plaintiff claims. In the District Court or Magistrates Court, the amount of the claim is, of course, apparent on the face of the summons. I think, though, that Mr Stratford is right in the sense that it is undesirable for counsel to be invited to offer a view as to the quantum of general damages. 22. Mr Stratford also criticised the learned Magistrate for referring to the numerical value which she might have attributed to the claim if it was proceeding by way of assessment under the Wrongs Act. He submitted also that there was an error in accepting the suggestion that there was a "rule of thumb" by which the amendments to the Wrongs Act were regarded as having "reduced damages for pain and suffering to one-third". 23. I must say that it would be erroneous to approach the assessment of general damages when that assessment is at large by reference to any such rule of thumb, or for that matter, by reference to the numerical value which might be assigned if the assessment was proceeding under the Wrongs Act. It is just as much a wrong process of reasoning to arrive at a numerical value by some process of scaling the award against what might be thought to be an appropriate allowance at common law, as it is to attempt to assess a common law award by multiplying what might be thought to be the appropriate assessment under the Wrongs Act by some factor. 24. It would also be erroneous to make an award in 1993 by way of general damages at common law, by reference to what might be thought to be the appropriate amount if the assessment had been made some twelve or thirteen years earlier. The award of general damages at common law is made in the money values applying at the date of the assessment. 25. Even allowing, however, for those criticisms, it seems to me that if I accept Mr Stratford's invitation to assess the award under this head afresh, I am not persuaded that the amount awarded is erroneous. In my opinion, if anything, the award was a modest award, given the extent of the plaintiff's persisting disability, and I would not be prepared to interfere with it. 26. In my opinion, the attack on the award for future loss of earning capacity should also be dismissed. As to this head of damages, Mr Stratford emphasised the fact that the plaintiff did not prove that there had been any substantial interference with her ability to work over the whole of the period of some fifteen years or so intervening between the date of the accident and the date of the judgment. 27. However, I have already pointed to the evidence which she gave as to some interruptions with her work with Gwynn Jones, and the occasions, albeit not often, when she has felt unable to work at her child care business. 28. Mr Stratford also referred to the very limited medical treatment which she had received over the same period. But the learned trial Magistrate found that the plaintiff was an
    "....honest and compelling witness who was not motivated
    by avarice to lie about her injuries or their ongoing
    consequences ..... I accept the plaintiff is an accurate and
    truthful witness who understated rather than overstated her
    case. She is clearly a woman who asks little and gives much,
    who does her best to adjust to circumstances rather than crying
    over spilt milk and complaining volubly ..... I have no doubt
    that remaining in the workforce has required considerable
    stoicism on her part, and that minimisation of economic loss has
    been achieved because of chronic pain and suffering,
    particularly while she was working as a seamstress." 29. The learned Magistrate went on to accept her evidence that "...she would not go back to sewing work because she now realised how much she had put up with when she was sewing", a passage of evidence as to which the learned Magistrate said: "Having seen her demeanour when she made that remark, I have no doubt that that was an honest and accurate assessment." Mr Stratford argued that even allowing for some interference with her ability to work in the future, her employment record since the accident and the minimal medical treatment were such that the sum of $6,000 for future economic loss should be regarded as too much. In my opinion, that argument should not be accepted. While it is true that for some time before settling down to the work which she now does from home, the plaintiff appears to have been able to obtain jobs without great difficulty, economic times are now much harder than they were, and quite apart from anything else, it must be that the plaintiff would be further down the queue in applying for jobs if she is obliged to disclose to a potential employer the accident injury and the fact that there is persisting sequelae from those injuries. 30. Furthermore, as I have indicated, there have been interruptions in her work, both with Gwynn Jones and her child minding work. In all the circumstances, the sum of $6,000, which in any event is a relatively modest amount, has not been shown to have been excessive. 31. The remaining ground of appeal is as to the allowance of $4,430 for interest. 32. The learned Magistrate delivered separate reasons dealing with the question of interest, but she does not set out the calculation which led to that amount. However, given the very small amount allowed for pre-trial economic loss, it must be that a substantial proportion of it is attributable to the allowance of interest on the pre-trial non-economic loss, which, as I have indicated, was assessed at $12,000. Her Honour applied an interest rate of 4 per cent, and by a process of reconstruction, counsel suggested, on the hearing of the appeal, that the learned Magistrate must have allowed 4 per cent on that figure since September 1984, which was a little less than three years after the issue of the summons. That calculation, that is, for a period of approximately 8.75 years, would give rise to a total of some $4,200. 33. There was a quite extraordinary delay between the issue of the proceedings and the case coming to trial. Her Honour was referred to my decision at first instance in Osborne v Kelly and Anor (unreported) 7 August 1992, Judgment No 3564. In that case, I dealt with a claim where twelve years intervened between the issue of the writ and trial. I held that the delay was attributable to the plaintiff who failed to prosecute the proceedings diligently. As a result, I allowed interest for a reduced period of some five years, representing the period during which the case might have been brought to trial if it had been proceeded with promptly. 34. In commenting on the decision in Osborne v Kelly the learned Magistrate said:
    "Insofar as the defendant's position is concerned, in my
    view, the procedural differences between this Court and the
    Supreme Court mean that Osborne v Kelly has to be distinguished,
    as in this case all the defence needed to do to get the matter
    moving was to file a defence so that the matter would go into
    the trial list. The procedure in the Supreme Court, at the time
    when Osborne v Kelly was in progress, was that the plaintiff had
    to file a praecipe for trial and, indeed, it appears that in
    Osborne v Kelly the defendant even applied for summary judgment
    in an effort to get the matter to trial. In this Court at all
    material times the filing of the defence has, in effect, served
    as the praecipe for setting down for trial. In my view, by 1984
    at the latest, the defendant should have realised something odd
    was going on and filed a defence which would have brought the
    matter to trial relatively quickly." 35. On the hearing of the appeal, I drew the attention of counsel to the fact that my decision in Osborne v Kelly, had been the subject of a successful appeal to the Full Court (see Osborne v Kelly and Anor 12.5.93, Mohr, Bollen and Millhouse JJ, Judgment No S3926). The Full Court took the view that the delay only counted against the plaintiff when the plaintiff personally was responsible for the delay. In that case, the plaintiff had suffered severe brain injuries, and the conduct of the litigation was in the hands of his next friend, the Public Trustee. The Court held that the delay could not be attributed to the plaintiff personally. Accordingly, the award of interest was increased. It must follow from the decision of the Full Court in Osborne v Kelly and Anor that where there is delay in prosecuting the action, it will be incumbent upon the trial Judge to distinguish between delay occasioned by the plaintiff personally and delay occasioned, for example, by his legal advisers. It must be said that not only will that create a situation which will give rise to some embarrassment on the part of counsel for the plaintiff, who will be tempted to blame his instructing solicitors rather than the plaintiff for any delay, but it will have the consequence that a negligent solicitor will pay reduced damages if he can show that delay resulted from his own negligence rather than from any act or omission of his client. 36. The evidence in this case as to the reason for the delay did not serve to demonstrate that the delay was attributable personally to the plaintiff. The learned Magistrate made the following findings which are relevant to this aspect of the matter:

    "It appears that shortly after she was injured in 1978, at
    which time she was a minor, her father instructed a local firm
    of solicitors in Mt Gambier to act on her behalf. She saw the
    solicitor her father instructed on one occasion during that
    early period and thereafter left the matter in her father's
    hands and the solicitor's hands. It seems that the solicitor
    issued and served a summons in this matter on the defendant
    within the statutory time periods, but only just. By that time
    the plaintiff was an adult. It appears that she has never seen
    the solicitor instructed to act since she turned eighteen.
    There matters remained until an insurance agent made the
    plaintiff aware that very long delays (such as have occurred in
    this case) were unusual delays and she then sought to make
    enquiries of the solicitor. Having been unable to speak with
    him directly about the matter despite a number of attempts, she
    then made arrangements to have another solicitor take over the
    matter - some 13 years after the injury occurred and ten years
    after a summons issued. At around the same time a defence was
    filed by the defendant and the matter came on for trial before
    me earlier this week. It is to be hoped that there are no other
    country courts holding files where such appalling delays have
    occurred." 37. It is clear from those findings, that although the plaintiff's father may have been at fault in failing to prosecute the matter, or the solicitors, it would not be right to conclude that the plaintiff herself was at fault. Although Mr Stratford suggested during the course of argument that she should have been more diligent in seeing to it that the action proceeded and contacted the solicitors herself at an earlier stage, she was, after all, only a young girl at the time, and it was not unreasonable for her to leave the matter in her father's hands. In the circumstances, it has not been shown on the evidence that the plaintiff was personally to blame with respect to the delay which occurred, and in those circumstances, applying the reasoning of the Full Court in Osborne v Kelly and Anor, the delay should not count against her. 38. It follows that the allowance for interest has not been shown to have been excessive. 39. The appeal will be dismissed.