Tony Kozlowski v Caterina Cecere-Palazzo No. SCGRG 92/2111 Judgment No. 3845 Number of Pages 5 Damages

[1993] SASC 3845

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA KING(1) CJ, OLLSON(2) AND PERRY(3) JJ

CWDS
Damages - Personal injury - musculo-ligamentous injury to neck, minor injury to ankle and injury to lungs due to smoke inhalation - physical injuries resolved - permanent traumatic stress disorder associated with conversion syndrome by which she continues to experience pain - pre-accident part-time cleaner who also assisted husband in his business - incapacitated since accident - unlikely to be able to engage in remunerative employment in foreseeable future - assessment $12,500 non-economic loss (11.68 on scale), $30,000 past-economic loss $60,000 future economic loss and $5,000 future medical expenses held on appeal to be not excessive.

HRNG ADELAIDE, 3 March 1993 #DATE 3:3:1993
Counsel for appellant:         Ms A Simpson
Solicitors for appellant:     Gun and Davey
Counsel for respondent:        Mr C J Roberts
Solicitors for respondent:     Paul Kirk, Roberts and Co

ORDER
Appeal dismissed.

JUDGE1 KING CJ This is an appeal against an assessment of damages in the District Court in respect of injuries sustained by the respondent in a rear end collision which occurred on 14 July 1988. On that occasion a motor vehicle driven by the appellant collided with the rear of a motor car driven by the respondent, in which her son was a passenger. The car burst into flames and in the course of the fire the respondent's son suffered burns. It was undoubtedly a terrifying experience for the respondent. 2. The respondent is a married woman who was aged 39 years at the date of trial. She is Italian by origin, migrating to this country at the age of 13 years. At the time of the accident she was working at the Royal Adelaide Hospital as a domestic. Her duties included general cleaning duties, polishing; mopping; washing bathrooms and toilets; dusting and cleaning windows. She performed that work in the morning for a period of 4 hours. When she finished work she would then prepare lunch at home and then assist her husband in his mechanical repair business in the afternoon. 3. The respondent sustained a musculo-ligamentous injury to the neck. She also sustained a minor injury to her ankle, and an injury to her lungs from smoke inhalation, which has left her subject to asthmatic attacks. 4. The learned trial judge accepted the evidence of Mr Geoffrey Jose, an orthopaedic surgeon, who considered that it was probable that the respondent had sustained a musculo-ligamentous injury to the neck which would have produced symptoms in her neck and shoulders and some straining injury to her right ankle. The learned judge in his reasons for judgment dealt with Mr Jose's evidence as follows:
    "However, he considers that any symptoms from these injuries
    should have disappeared long ago and that such of them which
    remain, and those for which no organic basis has ever existed,
    probably have their origin in some psychological condition. I
    think Dr Jose is probably correct and I think this is where the
    evidence of Dr Czechowicz enters and explains the basis for
    those continuing symptoms. " 5. Earlier in his reasons his Honour had dealt with the evidence of Dr Czechowicz in the following passage:
    "Dr Czechowicz, a psychiatrist, considers that as a result of
    the accident the plaintiff suffers from a post traumatic stress
    disorder associated with symptoms of conversion. He says this
    mental or emotional condition explains the plaintiff's mood
    changes since the accident, that it probably exacerbates
    symptoms of pain from the organic or physical injuries suffered
    by her, and provides a prolongation of those symptoms which
    might have otherwise resolved. He considers that she will
    require to take antidepressant medication for many years under
    supervision. He is hopeful that there will be some recovery in
    the long term, say ten years, in her emotional condition. He
    thinks it highly unlikely she will ever be fit enough to return
    to work." 6. Dr Czechowicz's opinions were controverted by Dr Dunsworth, a psychiatrist, called by the appellant, but his Honour preferred the evidence of Dr Czechowicz and has based his findings and his assessment upon that evidence. His Honour in consequence of his assessment of the medical witnesses made the following findings:
    "I find that in the accident the plaintiff suffered an injury to
    her lungs by way of smoke inhalation, a musculo-ligamentous
    injury to her neck, an injury to her right ankle, the exact
    nature of which, on the evidence, I am unable to be certain,
    except that I think it was in the nature of a sprain, and a post
    traumatic stress disorder associated with symptoms of
    conversion. I find that since the accident, because of the
    injuries sustained by the plaintiff, she has not been fit to
    perform her pre-accident or other work. I find that because of
    her injuries, and the symptoms she experiences as a result, it
    is unlikely that she will recover therefrom so as to enable her
    to participate in her pre-accident work in the foreseeable
    future. " 7. Having regard to those findings his Honour assessed the damages as follows. Non economic loss $12,500. Past economic loss of $30,000, which sum includes interest. Future economic loss $60,000. Special damages agreed between the parties $4,743. 45. Costs of Mr Calabrese $1,000, future medical expenses $5,000. His Honour gave judgment for the plaintiff in the sum of $115,243. 45, including interest. 8. Miss Simpson, who appeared for the appellant before us, attacked a number of the components in the assessment. Indeed she attacked all the principal components; namely the non economic loss, the past economic loss, the future economic loss, and the future medical expenses. 9. Miss Simpson pointed out, as to non-economic loss, that his Honour had not mentioned in his reasons for judgment the scale with respect to which he was required to assign a value by the provisions of the Wrongs Act. She contended that his Honour had erred in not having regard to those provisions and that his assessment for non economic loss was thereby vitiated. 10. It is true that his Honour has not expressly referred to the scale, nor expressly assigned the value. It seems to me, however, that his Honour must have assessed the amount for non economic loss under the provisions of the Wrongs Act as amended, and that he could not have been under the misapprehension that the law as it existed before the amendments applied. I say that for two reasons. One is the amount of which he assessed the non economic loss. It seems to me that having regard to the severity of the respondent's sufferings as found by the judge, and the medical evidence upon which he relied, and having regard to the amounts which he allowed by way of economic loss as a result of those findings, he could not have assessed an amount as low as $12,500 for non economic loss for those same injuries if he had been assessing the non economic loss under the Common Law principles unaffected by the amendment to the Wrongs Act. My second reason for saying that is that his Honour made no apportionment of the economic loss between the pre-trial impact of the injuries and the post trial impact. Under the old principles, because of the interest provisions, and for other reasons, it was the practice, and the required practice, for judges to make that apportionment. His Honour, it seems to me, must have been aware of the provisions of the Wrongs Act Amendment Act and of their applicability which relieved him of the necessity of making that apportionment. 11. Miss Simpson argued that the sum of $12,500 was excessive having regard to the scale which the judge was required to apply. The prescribed value of one unit in the scale of 1 to 60 laid down by the Wrongs Act Amendment Act at the relevant time was $1,070. The value in the scale of 1 to 60 represented by the sum of $12,500 was therefore 11. 68. 12. In my opinion, when one considers the findings which his Honour made as to the extent of the appellant's sufferings in the past, and her prospects for the future, and the medical evidence upon which those findings were based, a value of 11. 68 represents a moderate assessment of the respondent's non economic loss. I refer to the respondent's evidence as to her sufferings. The respondent's evidence is summarized in the judge's reasons for judgment:
    "The plaintiff's evidence is that since the accident, almost
    without abating, although there have been periods when she has
    been better than others, she has suffered pain in her neck, that
    the pain is at the back of the neck and on both sides of the
    neck, that it radiates into her right shoulder and sometimes up
    the back, over the top of her head and into both temples,
    although stronger on the right than on the left. She says that
    she has continued to suffer from pain in the whole of her neck
    but mainly in the middle of the back at about belt level. She
    says she has pain in the area of her right buttock, down her
    right thigh and into her right knee and ankle and the right side
    of her foot, including the two toes on the outer side of that
    foot. She says that the pain she has experienced, and which I
    have just described, is constant to one degree or another. The
    plaintiff says there has been considerable change in her mood
    since the accident. She says she feels depressed and is often
    tearful and irritable and lacking in interest in those
    activities which formerly gave her pleasure. She says that
    although her relation with her husband remains firm it has been
    adversely affected by her symptoms of pain and change of mood." I might add that the respondent gave other evidence of what can fairly be regarded as the effects of the stress disorder from which she was suffering. 13. His Honour's findings as to the respondent's complaints were as follows:
    "I thought the plaintiff exaggerated her symptoms somewhat.
    Perhaps in a paradoxical way she did so in order to impress me
    as to their existence. Nevertheless, I accept her evidence that
    she suffers from the symptoms of which she complains, although
    not to the degree of which she complains, and that her mood and
    emotional wellbeing has been altered in the manner described by
    her. Her evidence is corroborated, to some extent, by that of
    her husband and her aunt, Mrs Cecere. I should say, having seen
    and heard the plaintiff in the witness box, and considering her
    evidence against the background of the evidence as a whole, and
    subject to the qualifications I have expressed because of her
    tendency to exaggeration, I have treated her evidence as a
    reliable basis for findings of fact. More particularly, subject
    to the same qualification, I accept her evidence as to her
    symptoms and the effect thereof on her capacity to work and to
    enjoy her life." 14. I think that in view of that evidence, and those findings, the value which the sum of $12,500 represents is an entirely reasonable assessment of the non-economic detriment suffered by the respondent. 15. Miss Simpson contended that the amount allowed for past economic loss was excessive. His Honour based his assessment upon a schedule agreed by the parties which showed that the net loss of wages from the job at the Royal Adelaide Hospital from the date of accident to the date of trial was $35,361.77. There was also a further loss of a net sum of $309.30 by way of holiday leave loading in respect of the same period. His Honour discounted those figures, no doubt for contingencies, to the sum of $30,000, inclusive of interest. 16. Miss Simpson's argument was based upon the fact that the respondent's general practitioner had certified her as fit for light work in 1989. The general practitioner gave evidence and said that he had so certified her as he thought it advisable to encourage her to get back to work if she could. She, in fact, presented herself to her previous employer, the Royal Adelaide Hospital, but was told that there were no light duties available for her. As I have already pointed out, the psychiatrist, Dr Czechowicz, whose evidence was accepted by the trial judge, has expressed the opinion that the respondent is not fit for work, has not been fit for work, and, indeed, will be unlikely to be fit for work in the future. 17. In those circumstances I think it was proper for the judge to assess the past loss of earnings upon the basis which he adopted and that the attack on that aspect of the judgment must fail. 18. Miss Simpson also argued that the sum of $60,000 allowed for future economic loss was excessive. She contended that on the evidence the view should be taken that the respondent will be fit, or might be fit, for remunerative employment in the future and that in any event she has some residual earning capacity, in that she has the capacity to assist her husband in his business, as she has done in the past. She has also argued that greater weight should have been attached to the likelihood that the respondent would not have continued to work in the future to the extent that she had in the past. It is clear that the respondent led a very busy life, and hard working life, before the accident and Miss Simpson has contended that it is unlikely that in the absence of pressing financial considerations she would have done so in the future. 19. No doubt there is some force in all the factors to which Miss Simpson has referred. It must be remembered, however, that the learned judge has accepted the evidence of Dr Czechowicz, that it is highly unlikely that the respondent will be able to engage in remunerative work in the future. The learned judge, in fact, as it seems to me, has taken a conservative approach to the assessment of future economic loss. The sum of $60,000 represents, on the actuarial figures which were before the judge, a net weekly loss of about $80 per week. That is obviously only a fraction of the value of the respondent's full working and earning capacity. I do not think that it can possibly be regarded as an excessive estimate of the future economic loss. 20. Miss Simpson also criticized the sum of $5,000 which had been allowed for future medical expenses. It is rare to find a case in which one can reach any firm estimate of what future medical expenses will be and trial judges have to make the best estimate they can upon the material available to them. In the present case the learned judge had evidence that the respondent required the constant use, and would in the future require the constant use, of medication, which would require prescriptions from medical practitioners. That meant that not only would she have the cost of the medication but also the cost of visits to a doctor for the purpose of obtaining those prescriptions. There was also evidence that she would need follow up attention from her general practitioner. Presumably that will continue for most, if not all, of her life. She is in need of psychological counselling, at least for a period, and also undergoes hydrotherapy. Moreover, there is the prospect of quite expensive dental treatment in the future, although just when that might become necessary it is a matter of doubt. 21. I think when all those factors are taken into account the judge's estimate of $5,000 is within the realms of reason and that an appellant court could not interfere with it. 22. It seems to me for those reasons that all the attacks upon the components of the judgment are failed and that the appeal must be dismissed. The order of the court will be: appeal dismissed. There will be an order that the appellant pay the respondents costs of the appeal to be taxed.

JUDGE2 OLSSON J    Agreed.

JUDGE3 PERRY J    I agree. In doing so I draw attention to the obvious desirability of the trial judge giving an indication in the judgment of the numerical value placed upon the allowance for non-economic detriments in accordance with the scale under the Wrongs Act. Clearly a failure to do so may well result, as this case indicates, in unnecessary disputation on appeal.