Turney v Galloway

[2000] NSWCA 265

CITATION:	Turney v Galloway [2000] NSWCA 265
FILE NUMBER(S):	CA 40958/99
HEARING DATE(S):	21/09/00
JUDGMENT DATE:	26 September 2000
PARTIES :	Norman Kevin Turney (Appellant) Graham John Galloway (Respondent)
JUDGMENT OF:	Powell JA at 1; Fitzgerald JA at 2; O'Keefe AJA at 40

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	413/97
LOWER COURT JUDICIAL OFFICER :	Goldring DCJ

COUNSEL:	D L Ronzani (Appellant) S Hill (Respondent)
SOLICITORS:	Pricewaterhouse Coopers Legal (Appellant) Leo & Morrison (Respondent)
CATCHWORDS:	Negligence - motor vehicle accident - whether the trial judge erred in not allowing an adjournment application to plead contributory negligence - damages - ND
LEGISLATION CITED:	Motor Accidents Act 1988
DECISION:	Appeal dismissed with costs. The amount of the respondent’s damages reduced to correct the trial judge’s arithmetical error from $301,606.17 to $299, 928.47.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40958/99
DC 413/97

POWELL JA
FITZGERALD JA
O’KEEFE AJA

TUESDAY 26 SEPTEMBER 2000

TURNEY v GALLOWAY

JUDGMENT

1   POWELL JA: I agree with Fitzgerald JA. 2   FITZGERALD JA: At about 5.00pm on Wednesday, 11 October 1995, a collision occurred between a motor cycle ridden by the respondent and a truck driven by the appellant at the intersection of the Princess Highway and Tongarra Road, Albion Park Rail. The respondent was injured. On 27 November 1997, he sued the appellant for damages for negligence. In a defence delivered in or about January 1998, the appellant admitted that he had breached his duty of care to the respondent “but save as herein admitted denies that he was negligent …”. The appellant also alleged that the respondent was guilty of contributory negligence. 3   The trial commenced at Wollongong on 15 April 1999. The appellant, who was then represented by Senior Counsel, withdrew the allegation of contributory negligence and admitted liability. The action was then adjourned for the determination of the respondent’s damages. In due course, it was re-listed for hearing on 11 November 1999. 4   On 5 November 1999, the appellant filed a notice of motion for an order vacating the hearing date or, in the alternative, an order that his evidence be heard at a later date because of his medical condition. The appellant also proposed to call evidence from a police officer. Although the police officer had been identified in the accident report, the appellant’s solicitor had not ascertained what evidence he could give until shortly before the notice of motion was filed. When the matter came on for hearing, it emerged that the appellant had changed counsel and his new counsel was unaware that liability was not in issue. An application was then made by the appellant to reinstate his earlier allegation that the respondent had been contributorily negligent. If that course had been permitted, it would have been necessary to adjourn the trial. 5   The trial judge refused to allow the appellant’s application and proceeded to hear the matter and determine the respondent’s damages on 11 and 12 November 1999. His Honour gave judgment for the respondent against the appellant for $301,606.17 and made orders with respect to costs. 6   The appellant has appealed, seeking orders that the appeal be allowed and that the proceeding be admitted to the District Court for a re-hearing on contributory negligence and damages. 7   The first three grounds of appeal allege error by the trial judge in refusing to allow the appellant to contest the issue of liability and adjourn the trial for that purpose. Senior counsel then appearing for the appellant had, more than 6 months earlier, indicated that the respondent’s claim was contested on the issue of damages only. The application for a further adjournment was first raised less than a week before the date fixed for the assessment of the respondent’s damages and approximately two years after the action had been commenced. In the circumstances, the respondent was entitled to have a judgment for his damages without further delay. There is nothing which would justify this Court in interfering with the trial judge’s discretionary decision. 8   The appellant’s other grounds of appeal relate to the damages awarded by the trial judge to the respondent.

A. ECONOMIC LOSS, INCLUDING SUPERANNUATION BENEFITS

9   The appellant’s principal complaint related to the amounts awarded by the trial judge for past economic loss ($15,000), future economic loss ($163,069.32) and superannuation benefits ($22,558.75). 10   The respondent was aged 32 years when he was injured and 36 years at the time of trial. He had left school after year 10. He did not have any formal qualifications or employment skills. He worked at different times in a variety of jobs, including at garages and as a pastry cook, fruit-picker, car stripper, fork-lift driver and removalist. From about 1988, most if not all of his work was as a removalist. However, he was unemployed for much of the time as a matter of choice. For three years before the accident, he drew Social Security benefits and sometimes “did cash in hand jobs in the removal industry”, apparently earning very little. 11   The applicant had only 10% vision in one eye and a number of injuries unrelated to the subject accident. He had been involved in a trail bike accident when he was young, had received a gun shot wound to the left upper leg in 1986 and had received injuries to his head and right lower leg when he was assaulted in 1994. He was again assaulted in 1996. The most significant of the respondent’s injuries prior to the accident were to his right knee and right hand. An orthopaedic surgeon who performed an arthroscopy and removed some debris from the respondent’s right knee in 1991 had noted degenerative changes and an old peripheral tear of the medical meniscus. One of the medical practitioners whose report was in evidence considered it doubtful whether the respondent could have worked as a removalist for more than 5 years after the accident even if he had not been injured. Although the trial judge made no reference to that report, he plainly did not act on that basis and there was evidence which supported the course which he took. 12   His Honour found that the accident caused the respondent “a permanent and significant impairment of the use of the right hand” and “severely and significantly exacerbated” the “pre-existing condition” of his right knee, resulting in a “disabling” knee injury. Further, the accident was “a significant factor” in depression which the respondent has suffered since 1996. As a result of his psychological condition, “he lost motivation [and] became listless”. It was found that the accident had caused the respondent to become unemployable. His Honour accepted the evidence of an industrial psychologist who had experience as a rehabilitation counsellor “that people with [the respondent’s] injuries, particularly where there is a fairly available labour market, do not get employed in unskilled jobs.” 13   The trial judge also accepted evidence from the industrial psychologist and a consulting accountant that statistical information indicated that a person such as the respondent “would have [had] a weekly income of about $267 per week, counting periods when he was not in full time employment” if he had not been injured. The appellant did not contest that that figure was statistically accurate, but submitted that it could not appropriately be applied to the respondent because of his physical disabilities independently of the accident and his work history. 14   The respondent’s work history can be put to one side despite his disinterest in work prior to the accident. The trial judge found that the respondent was “a truthful man who would like to work if he could”, and that, since the accident, he had “sought work” and cannot be “in any way held accountable for the fact that he has not been able to secure employment.” 15   In those circumstances, it is difficult to comprehend the different approaches which his Honour took in relation to the respondent’s economic loss in the period between the accident and the trial and his future economic loss. Because “it [was] difficult ... to assess whether or not he would have obtained a job [in the period prior to trial] had he not been in the accident”, the trial judge allowed “a cushion of $15,000 to cover lost earnings between the date of accident and the date of trial.” However, future economic loss was calculated on the basis that the respondent would, post-trial, have earned an average weekly income of $267 discounted by 25% for vissitudes rather than the normal 15% “because of the evidence that his condition before the accident did show signs of degeneration in the knee which was likely to result in disability”. 16   The appellant boldly submitted that not only the award of $163,069.32 for future economic loss and the corresponding award of $22,558.75 for superannuation benefits but also the amount of $15,000 in respect of past economic loss were excessive, and that only $5,000, at most, should have been allowed for past economic loss. There is plainly no merit in that submission having regard to the trial judge’s findings in relation to the respondent’s willingness but inability to find work because of the injuries he received in the accident in the period between the accident and the trial. Indeed, on the findings made by the trial judge, there is no obvious justification for the small amount which he awarded the respondent for past economic loss. However, the respondent has not cross-appealed. 17   Nonetheless the difficulty associated with the trial judge’s assessment of the respondent’s past economic loss deprives the tension between the different approaches adopted by his Honour to the assessment of past and future economic loss of significance. Once that point is reached, the appellant did not argue that the trial judge’s approach to the assessment of future economic loss involved any error of principle. The submission was that the amount was excessive having regard to the respondent’s work history and physical disabilities apart from his injuries sustained in the accident. 18   As stated above, the trial judge’s finding’s deprived the respondent’s work history of any real significance. His Honour’s judgment unfortunately provides little insight into the process of reasoning which he adopted and his reference to an average weekly income of $267 as “a sound a basis for judicial guesswork as any” does little to inspire confidence. There is also little explanation of the decision to increase the discount for vissitudes from 15% to 25% rather than some higher percentage, as the appellant contends was appropriate. 19   However, while I consider that the award of $163,069.32 for future economic loss was generous to the respondent, as was the corresponding figure of $22,558.75 for lost superannuation benefits, no appealable error has been demonstrated. 20   The appellant made an additional complaint in relation to the amount awarded for future economic loss which, as I understand it, also affects the amount awarded for lost superannuation benefits. The respondent did not dispute the appellant’s contention that the trial judge’s calculations involved error, including the use of a wrong multiplier. 21   The appellant did not put any figures before the Court in relation to the appropriate reduction in lost superannuation benefits but indicated, without challenge from the respondent, that the correct multiplier to have been used for future economic loss should have been calculated by his Honour as $161,491.62, not $163,069.32. The appropriate variation to the damages awarded can conveniently be made by this Court.

B. Viscosupplementation treatment

22   The trial judgment an amount of $7,500 for “viscosupplementation”. One of the respondent’s doctors, Dr Kirk, had recommended that treatment and the respondent claimed approximately $16,000 for that purpose. However, the trial judge considered that the treatment was new and the evidence about it “was not entirely satisfactory”. His Honour held that it would be appropriate for the respondent to undergo the treatment “at least in an experimental way”, i.e., presumably to see whether it assisted him, and reduced the amount awarded to $7,500. No complaint is made by the respondent that more should have been awarded. 23   The appellant submitted that the trial judge erred in refusing to admit into evidence a report from Dr Thomas A Silva. Although dated 19 August 1999, the appellant had not provided the respondent with a copy of the report until mid-October or a little later, which was outside the period prescribed by the rules. The appellant submitted that, if Dr Silva’s report had been received, “the award of $7,500 would have been materially affected”. 24   Dr Silva’s report merely said that viscosupplementation had “yet to be shown to be a cost affective (sic) method of treatment reasonably indicated in the treatment of arthritic knees.” That is consistent with the trial judge’s acknowledgment that the respondent’s use of viscosupplementation would be “experimental,” and his Honour’s award of less than half the amount claimed. There is no justification for this Court’s interference.

C. NON-ECONOMIC LOSS

25 The Appellant submitted that the trial judge should have assessed the severity of the respondent’s non-economic loss as 23% , not 30%, of a most extreme case for the purpose of s 79A of the Motor Accidents Act 1988. 26 The appellant’s argument was based on the proposition that his Honour had “failed to properly take account of” a number opinions expressed by medical witnesses, which were summarised in the appellant’s written submissions as follows:

“(i) the opinions of Dr Gray in his report dated 31 July 1996 [Blue AB pp 19 & 20] in particular that the subject accident caused “a degree of decompensation … hindering the (respondent’s) ability to return to full normal duties … (so that he should) undertake a graduated program under the aegis of a rehab (sic) plan…”;
(ii) the opinions of Dr Courtenay in his report dated 29 September 1997 [Blue AB pp 21-24] to the respondent’s solicitors that the respondent had a 30% permanent loss of efficient use of the right knee of which 20% was the result of the subject accident [page 23 @ W];
(iii) the opinions of Dr Turnbull in his report dated 19 October 1998 [Blue AB pp 30 - 34] to the respondent’s solicitors that psychiatrically the respondent had a past medical history which was complicated although he could find no symptoms of depression previously. He reported that from November/December 1995 until 30 October 1997 the depression had improved with treatment but then deteriorated following a conflict with a neighbour. Overall the prognosis was “good” and “complete normalisation of his mood” was anticipated;
(iv) the opinions of Dr B C Bracken in his report dated 30 October 1998 [Blue AB pp 35-39] to the respondent’s solicitors that”
(a) ‘considering the nature of the changes present within this man’s right knee and the history of his right knee, it is my opinion that it is doubtful he would have been able, in the absence of any accident, to have continued working as a furniture removalist of more than another five years’ [Blue AB p 28 @ V];
(b) the respondent had a permanent 15% loss of efficient use of the right leg at the knee of which 50% was due to pre-existing conditions [Blue AB p 39 @ E & K];
(v) the opinions of Dr T A Silva in his report dated 15 August 1997 [Blue AB pp 146-148] that the “aggravation resulting from the accident of 11.10.95 would probably attract about 7% permanent loss of use of the right lower limb at the right knee. No surgery appears to be necessary for the right knee from the point of view of the motor bicycle accident …” [Blue AB p 148 @ G];
(vi) the opinions of Dr Maguire in his report dated 4 June 1999 [Blue AB pp 164-169] that while psychiatrically the respondent had some continuing intermittent depressive symptoms well controlled by medication, he was not left with any long term depressive illness due to the subject accident [Blue AP p 169 @ L].”

27   According to the respondent, the trial judge’s award properly took into account the combination of his injuries, “in particular pain and significant impairment of his dominant right hand, severe and significant exacerbation of a pre-existing right knee condition and continuing depression.” The respondent’s written submissions relied on the following medical opinions:

“(a) In relation to the right hand Dr Honner in his report of 2nd December, 1997 [Blue AB pp 28-29) indicates:-
(i) There is a permanent reduction in the power and grip strength and stamina of the right hand.
(ii) The Respondent is permanently unfit to return to his previous job as a Removalist because of the injury to the right hand.
(iii) It is very likely he will develop post traumatic arthritis.
(iv) There is a permanent loss of 12% of use of the dominant right hand.
(b) In relation to the right knee:-
(i) Dr Gray in his report of 31st July, 1996 [Blue AB p 19 V] said that Mr Galloway had considerable pre-existing problems in the right knee but was coping with his work as a Removalist.
(ii) The statement of Dr Gray above accords with the evidence of the Respondent that the knee was not causing him any difficulty pre-accident. (Black AB p 47 J-L].
(iii) Doctors Courtney, Bracken and Silva all agree that the Respondent has a permanent loss of use of his right lower limb arising from the accident. They differ only on the percentage loss of use attributable to the motor vehicle accident.
(iv) Dr Courtney in his report of 29th September, 1997 records that on examination on 15th September, 1997 the Respondent’s right knee was found to be “very disabled with significant loss of muscle bulk, significant pain and chronic of effusion”. [Blue AB p 23 P-Q].
(v) Dr Bracken in his report of 30th October, 1998 records that “the direct injury to the front of his knee on 11th October, 1995 has aggravated and accelerated degenerative changes already present within his right knee and his right knee has remained moderately symptomatic thereafter, such that he could not return to work as a Furniture Removalist.” [Blue AB p 38 T-V].
(c) As to the depression:-
(i) His Honour had the advantage of hearing the oral evidence of Dr Turnbull. He was impressed by the evidence of the doctor and accepted that “the knee injury resulting from the accident was a significant factor in Mr Galloway’s (psychological) condition” [Red AB p 27 T, p 28 D].
(ii) Dr Turnbull gave evidence that he could find no evidence of a prior depressive disorder [Black AB p 81 E] and that when he first saw the Respondent on 25th August, 1997 there was evidence of a severe depressive disorder [Black AB p 82 K].
(iii) Dr Dent in his report of 9th February, 1999 expresses the view that the Respondent suffered from a chronic pain disorder [Blue AB p 40 V].

28   Fortunately for the respondent, the trial judge’s failure to provide adequate reasons was not raised as a ground of appeal or in argument. His Honour gave no explanation for the figure of 30% of a most extreme case. 29   While that figure might again be generous to the respondent it does not of itself manifest appealable error.

D. Right knee replacement

30   The appellant argued that the trial judge erred in awarding the respondent $11,000 for a right knee replacement in the future. It was submitted that, on the whole of the evidence, no amount should have been awarded on this basis, or alternatively “a much smaller allowance should have been made to take account of the likelihood that any surgery would have been needed anyway and any acceleration of the need for such surgery caused by or materially contributed to by the subject accident was only marginal”. The appellant’s written submissions were as follows:

“29. Dr T A Silva opined [see point 26(v) above] that no future surgery to the right knee was caused by the subject accident. His Honour did not deal with his opinion in this respect. His Honour only referred to the opinion of Dr Courtneay and the costs assessed in his report dated 12 December 1997 [Blue AB p 25].
30. In any event, Dr Courtenay’s own view was that the respondent did not require further operative treatment as at 29 September 1997 [Blue AB p 24 @ F]. Properly understood, the opinion expressed by Dr Courtenay amounts to a guess that by reason of the development of degenerative changes in the right knee, “some reconstructive surgery” may be required “in the future” [Blue AB p 24 @ G].
31. At the very highest for the respondent’s case, Dr Bracken opined in his report dated 30 October 1998 [Blue AB p 39 from line D] that 50% of the right knee condition, including the “long term” need for a total knee replacement, was the result of the subject accident.”

31   According to the respondent, the trial judge correctly concluded that the possibility prior to the accident that the respondent would require a right knee replacement had been converted into a certainty or near certainty by the accident. Reliance was placed upon a statement by Dr Courtenay in his report dated 29 September 1997 “I believe that he is developing degenerative changes in his knee and these may well require some reconstructive surgery in the future”, and a statement in the report of Dr Bracken in his report of 30 October 1998 “in the long term it is certain that he will need a total replacement of his right knee”. 32   The premise underpinning the appellant’s argument is flawed. The trial judge found it probable that “because of the aggravation of the degenerative changes in his right knee, [the respondent] will require a right knee replacement, but that will not happen for about twenty years.” His Honour went on to say”

“… I refer to Dr Courteney’s evidence as to what that would cost, but discounting it for the time delay I will award a sum of eleven thousand dollars to cover the right knee replacement.”

33   The appellant again failed to establish appealable error.

E. Future Pain Management and Psychological treatment

34   The appellant submitted that the award of $13,500 to the respondent for future pain management and psychological treatment was excessive. Nothing, or no more than $5,000, should have been allowed. 35   The trial judge found that the respondent “will require treatment by way of pain management and associated psychological treatment from Dr Dragutinovich and others and continued medication”. It does not seem to be disputed that the amount allowed was related to the nature and cost of the treatment referred to in Dr Dent’s report of 19 October 1998. That treatment comprised:

(a) 15 - 20 weekly or fortnightly consultations with a psychologist.

(b) 6 sessions at a Pain Management Unit.

(c) Attendance at an ADAPT Program.

36   The appellant submitted that it was “plain enough” from an examination of material set out in Dr Dent’s report “that his assessments were limited to taking into account the views of Drs Courtenay, Honner and Turnbull along with his own.” Further, the amounts referred to by Dr Dent “have not been reduced to take account of the fact that they relate to future expenses received all at once”. 37   The respondent argued that support for his Honour’s conclusion is to be found in the opinions of Dr Turnbull in his report of 19 October 1998 (Blue B, A, B, P 33 W) and Dr Dent in his report of 19 October 1998 (Blue A, B, pp 44 and 45). Further, “[t]here is no suggestion that such treatment would be deferred or prolonged such as to require reduction”. 38   Once again, the trial judge’s reasons do not adequately explain his reasoning, but there is otherwise no appealable error discernible.

Summary

39   The appeal should be dismissed with costs, but the amount of the respondent’s damages should be reduced to correct the trial judge’s arithmetical error from $301,606.17 to $299, 928.47. 40   O’KEEFE AJA: I agree with the reasons of Fitzgerald JA and the orders proposed by him.

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