Wendy Lynette Zahmel v Rosemary Griffin File No. Scgrg-97-845 Judgment No. 6759 Number of Pages 16 Damages

[1998] SASC 6759

IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA

COX, MULLIGHAN AND WILLIAMS JJ

CATCHWORDS

Damages - measure and remoteness of damages in actions for tort - measure of damages - road accident - appellant sustained significant personal injuries - pre-existing conditions - exacerbation to some degree and new physical injuries - psychological and psychiatric injury - extensive treatment including surgery - excessive treatment - acceptance by learned trial Judge of body of opinion that appellant would substantially recover with some residual disability - numerical value of 17 fixed for non-economic loss pursuant to s35A of the Wrongs Act - registered nurse - finding unable to work prior to assessment and for a period after assessment - finding would not have worked full time prior to the accident - damages for economic loss assessed at $78,000 for past and $52,000 for future - assessed on that basis and for a period of two years for the future - total award $192,613.24 - appeal against award for economic loss - contention that learned trial Judge erred in his assessment of the extent of the disability and incapacity of the appellant - findings of learned trial Judge as to those matters should not be disturbed - however, error in basis of assessment for both past economic loss and future economic loss - damages increased - past loss assessment should be assessed on basis that appellant would have worked full time but for the subject accident - economic loss awards based upon incorrect determination of pre-accident and pre-trial earnings - upon correct determination assessment for economic loss should be increased to $95,000 as to past and $64,000 as to future - total award should be increased to $221,613.24.

ADELAIDE, 5 February 1998 (hearing), 8 July 1998 (decision)

#DATE 8:7:1998

APPEARANCES

Appellant:

Counsel: Mr S J Walsh QC

Solicitors: Peter Scragg

Respondent:

Counsel: Mr D F Stratford

Solicitors: Ward & Partners

Order: XXX

COX J

The issues in this appeal are set out in the judgment of Mullighan J which I have had the advantage of reading. I agree with his Honour's reasons except with respect to the past economic loss.

The learned trial Judge awarded the appellant the sum of $130 000 for economic loss "which I apportion as to the sum of $78 000 for the past and as to the sum of $52 000 for the future inclusive in each instance of the plaintiff's loss of a chance." While that could be interpreted as a compendious award of $130 000 with a somewhat arbitrary division into two parts for interest purposes, I think, in the circumstances, that it is appropriate to look at the two parts of the award separately. A successful attack on one part will not necessarily require a reassessment of the other.

It would seem that for the pre-trial period the learned Judge worked on a rate of $26 000 net a year for three years in assessing what he described as the loss of a chance. The accident happened on 31 March 1994 and judgment was entered in the District Court on 4 June 1997, so the period was three years and two months. While the position on the evidence appears unclear, I assume that the appellant would have been paid continuously by one or other of the hospitals while she was changing jobs. Her net rate of pay at Modbury Hospital would have been $31 553 p.a. for the first year and $32 105 p.a. thereafter. If one uses the Modbury rates throughout, that adds up to $101 114 for the whole pre-trial period, but from that there must be deducted the first week's wages of $607 ( Wrongs Acts35(a)(i)(d)) and the two payments of $582 and $2 397 that the appellant received for work she managed to do in May and July 1994, leaving a prima facie net entitlement of $97 528. In fact the learned Judge allowed $78 000 which represents a discount of twenty per cent. The question is whether the reduction can be justified on the evidence.

His Honour noted that before the accident the appellant had a good work record. However, it is clear from the context of that finding that the learned Judge was distinguishing "work record" from "work history". I therefore infer from the reference to a good work record that he meant that the appellant carried out her nursing duties conscientiously and efficiently. He made it plain, however, that he was less impressed by her work history, that is, the hours she was willing to work and actually did work. She had accepted the position at the Queen Victoria Maternity Hospital in 1986 on the footing that it would be a thirty-eight hour week with a rotating roster but she made a number of applications thereafter to vary her hours, usually by way of reduction, and her requests were generally met. The reasons she gave related for the most part to her young children and her husband's work. In August 1988 she wrote to the Clinical Nurse Consultant apologizing for the time she had had off work and referring to her lack of commitment up to that time. In August 1993 she applied to reorganize her status and hours of work because she had held the temporary post of clinical nurse for two years "and I'd had enough basically", and also because she did not want to work night duty and was looking for another job. The terms of her new position at Modbury included an obligation to take her turn on night duty. It is true that she signed a contract with the Modbury Hospital which required her to work full-time with certain roster obligations but that had been the situation with the QVMH contract as well. It did not prevent the appellant from applying there to have her hours or her roster varied. In 1994 her younger child was eleven years of age. The appellant had had a good deal of illness up until this time, and she had pre-accident injuries to her wrists and shoulders although without symptoms in the year or so prior to the accident. In my opinion the learned Judge was entitled to give appreciable weight to these adverse contingencies in assessing the value of her lost working capacity in the period prior to judgment. I think he was right in holding that the adverse contingencies were not cancelled out by the favourable contingencies. The latter appear to me to have been practically non-existent. There is no evidence that the appellant had any real prospect of being promoted in this period or that she would have been able to move to a better paid job. Judging from her work history it is very unlikely that she would have sought overtime or weekend work. The learned Judge was thus entitled, in my view, to discount the prima facie figure representing her past loss of earning capacity. In my opinion, however, a discount of the order of twenty per cent was too high. With some hesitation, I would adjudge it to be appealably high. I would substitute an award of $87 000 for the past economic loss.

That leaves the matter of the future economic loss.

After analyzing the medical evidence dealing with the appellant's physical and psychological disabilities, the learned Judge said -"On the material before me and doing the best I can for the plaintiff, I propose to make an award compensating the plaintiff until the end of May 1999." I would not infer in such a case as this that the trial Judge was thereby finding that the appellant would probably be totally disabled until May 1999 and that she would then immediately take up full-time employment. What his Honour was saying, I have no doubt, was that the appellant would in time get back into the workforce, probably starting with part-time work, and that the equivalent of two years' lost earnings would be a fair assessment in the circumstances of her future economic loss. In my opinion that was a finding that was reasonably open to the learned Judge on the evidence, and one would not ordinarily weigh to a nicety the actual allowance for what is inevitably an imprecise estimate. However, it seems clear that the Judge was intending to give the appellant something in the order of two years' loss of earnings. There is less occasion here, I think, for a contingencies allowance. I think it likely that his Honour simply assessed the future loss at the same rate as the pre-trial loss and that, in the circumstances, amounted in my view to an error. While I should have been inclined to make a small discount for adverse contingencies - again, I do not think there are any favourable contingencies, practically speaking, to balance against them - I would not dissent from Mullighan J's assessment of $64 000 for the future economic loss.

In my opinion the appeal should be allowed, the award of $182 613.24 set aside and in lieu thereof judgment entered in the appellant's favour in the sum of $203 613. In other respects the judgment of the District Court should be affirmed.

MULLIGHAN J

The appellant is a registered nurse. She was injured in a motor vehicle accident on 31 st  March 1994 when she was a passenger in a motor vehicle driven by the respondent which collided head on with another vehicle. It was a violent collision and both vehicles were extensively damaged. She brought an action for damages against the respondent in the District Court. At trial liability was conceded by the respondent and the matter proceeded for assessment of her damages.

The learned Trial Judge assessed general damages at $158,310. Special damages were agreed at $24,303.24. After making an allowance for interest, at $10,000, judgment was entered in favour of the plaintiff for $192,613.24. The appellant appeals against the assessment and contends that the award for economic loss is inadequate.

The appellant was born on 16 th  September 1954 and was aged 39 years at the time of the accident. She commenced this action on 26 th  June 1994. The trial began on 13 th March 1997 and was completed on 4 th  June 1997 when the judgment was entered, although the learned Trial Judge assessed damages on 8 th  May 1997.

The appellant is a married woman with two children now aged 21 years and 15 years respectively.

It is necessary to say something about her employment history. The appellant is a nurse and completed her training in 1980 and was then registered. Since then she has worked as a nurse except when having her younger child and when incapacitated due to her injuries sustained at various times and in the subject accident. In 1985 she moved from Queensland to South Australia and commenced work at the Flinders Medical Centre. In 1986 she completed her qualifications as a neonatal nurse and then worked in the neonatal intensive care centre at the Flinders Medical Centre until September 1986 when she transferred to the Queen Victoria Hospital and commenced work as a registered nurse and midwife. Her duties involved patient care on a one to one basis, the care of prematurely born babies and those with disability, resuscitation procedures, inserting intravenous drips and central lines, assisting in retrieval operations, training new staff and carrying out some administrative tasks. In 1991 she was promoted to the position of temporary clinical nurse, the duties of which she undertook when permanent clinical nurses were on leave. This position involved added administrative responsibility. That position became permanent but she worked reduced hours. In early 1994 the plaintiff applied for the position of clinical nurse at the Modbury Hospital. She was offered the position to commence on 1 st May 1994 but the subject accident and injuries intervened. It may be seen that the appellant has a sound employment history, has worked in positions of responsibility and intended to advance her career.

The appellant sustained various injuries prior to the accident. She suffered a twisting injury to her right knee on 19 th  May 1987 resulting in traumatic synovitis. She was away from work until 3 rd  June 1987. She was involved in a motor vehicle accident on 12 th  June 1987. She was driving a motor vehicle which ran into the rear of a stationary motor vehicle and she suffered soft tissue injuries to her neck, right upper chest, right shoulder, elbow and thumb. The appellant had significant treatment for some of these injuries although x-rays of the cervical spine and right shoulder were reported as normal. Treatment for the shoulder included injection of local anaesthetic and steroid and, in April 1988, acromioplasty coraco chromial ligament resection and bursectomy. The bursa was found to be grossly thickened and the subchromial area was very tight. In the meantime the appellant suffered depression and was treated by a psychiatrist. She returned to work but could not lift heavy objects and still had some weakness in the shoulder in October 1988.

On 8 th  September 1992 the appellant fell on to her right arm and experienced pain in her right thumb, wrist, elbow and shoulder. The diagnosis was soft tissue injuries. Finally, she was again injured when she fell at a Woolworths store on 18 th  December 1992. She suffered a fracture and strain of the right or left wrist, the position is not clear, and an injury to the right elbow and thumb and left thumb. The fracture of the wrist was of a minor nature. The appellant was still suffering symptoms in the left shoulder and left wrist in May 1993.

As might be expected, considerable attention was focussed upon the pre-accident medical and accident history of the appellant. The learned Trial Judge made the following findings:

"Having regard to the totality of the evidence that I have read and heard, and particularly on the contents of the reports issued, and the evidence given by Dr Matto and Mr Brown respectively, I am satisfied to the appropriate degree, and find, that, prior to the accident which is the subject of these proceedings, the plaintiff had suffered from, and had been treated for, inter alia, depressive illnesses, teeth grinding/clenching, and problems with inter alia her neck, chest, wrists, arms, right shoulder, left shoulder and knee. I find that all of that was as a consequence of one or more or all of the incidents to which I have referred and because of the state of her health in general.

I am also satisfied to the appropriate degree, and find, that the plaintiff has a substantial history (which history extends over a long period of time before the subject accident) of symptoms similar to, or not dissimilar from, many of the symptoms of which the plaintiff has complained as allegedly flowing from some of the injuries said to have been suffered by her in the subject accident to some of the same part or parts of her body."

Before turning to the injuries sustained by the appellant in the accident and their effect upon her, it is appropriate to note the finding of the learned Trial Judge as to the credibility of the appellant as the reliability of her evidence was essential to her case, particularly in view of conflicting medical evidence. The learned Trial Judge expressed concern about the appellant. His assessment of her was made all the more difficult because of her demeanour in the witness box. She was, at times, tearful and depressed. Observation of her movements caused him to be unsure as to the probable extent of her true disability. He said:

"She did not impress me, at least as I saw her at that time, as being a person who was suffering from significant physical discomfort in her neck or in her shoulders or indeed in any other part of her body."

However, he said that having regard to all of the evidence and having closely scrutinised the evidence of the appellant, he reached the following conclusion:

".... and after taking all other relevant matters into account, I must say that at the end of the day I am satisfied and accept that the plaintiff is basically telling the truth on all aspects of the case, although part of her evidence demonstrates an element of exaggeration or at times perhaps even gross exaggeration. My final impression of her was that she was an honest witness, upon whose evidence I could safely rely, notwithstanding that at times she was given to stretching and/or exaggerating the perception which she had of her bodily feelings, and the consequences which flowed from them. I have taken that factor into account when making my findings. I am satisfied that to the extent that she engaged in exaggeration, she did so unconsciously and not with an intent calculated to deceive or deliberately mislead. I remain of that opinion even though at the end of the day I gained the distinct impression that because of her psychological and/or psychiatric condition she appeared to be using the subject accident as a peg upon which all after effects of the accident, whatever they may be and however she may perceive them to be, are to be hung."

In the accident the appellant sustained various injuries. She had bruising over her left shoulders, chest, right breast and right hip caused by the seat belt which she was wearing and a burn to the left side of the neck caused by the seat belt. She sustained a fracture of the right wrist, a strain of the right shoulder, bruising of the left elbow, bruising or laceration to the left knee, bruises to the right knee and right ankle, a bite injury to her tongue, an injury to her left tempora-mandibular joint and injury to her back and neck.

The appellant has an extensive history of treatment prior to the trial. The following description is taken from the reasons for judgment of the learned Trial Judge and may be accepted as findings made by him.

Immediately after the collision, the appellant was taken by ambulance to the Flinders Medical Centre. She was admitted and was an in-patient for three days before she discharged herself. X-ray examination revealed a possible fracture of the triquetrum. Her right arm was encased in plaster and her left knee was sutured.

The appellant consulted her general practitioner, Dr Matto, who referred her to Mr Brown, an orthopaedic surgeon. He saw her on 5 th  April 1994 and formed the view that she had suffered a crush injury to the chest and soft tissue injuries to the cervical spine, both shoulders and the right arm. Also, he formed the view that there was a soft tissue injury of the lower lumbar spine which was probably superimposed upon some dessication of the discs. There was a lesion on the right hip. A new plaster cast was applied to the right wrists and hand which five weeks later was replaced with a fibreglass cast. Mr Brown provided her with a neck brace and she underwent physiotherapy in relation to both her arm and her neck. Mr Brown expressed the view that the injury to the right shoulder was superimposed upon previous injury to that shoulder which the learned Trial Judge found to be the case and which related to the injury sustained by the accident in June 1987. The appellant continued to see Mr Brown for about four months. She claimed to have many symptoms, including pain in her neck and right elbow which eventually resolved. X-ray examination did not reveal any abnormality in either area. The learned Trial Judge accepted that the appellant had substantially recovered within some months of the accident.

However, other problems developed. In May 1994 the appellant had pain in her groin. Investigation revealed that abdominal muscle was partially torn from the bone in the pubic area. This condition stabilised but occurred again in February 1997. Also, she experienced a problem with her vocal chords in 1995. A lump was removed from her right breast. During the anaesthetic procedure, her right vocal chord was damaged by the endo-tracheal tube. Her voice faded and she had a sore throat for many months. She undertook speech therapy and the condition gradually improved and stabilised in about March 1996.

The learned Trial Judge found that the lump in the right breast was due to fat necrosis in the breast caused by the seat belt during the subject accident. The lump resolved upon surgery in the middle of 1994. However, she developed many other lumps in the right breast which ultrasound examination showed to be cystic areas. Some were aspirated successfully. In March 1995 the appellant underwent further surgery for removal of lumps and aspiration of cysts. The learned Trial Judge found that the appellant has suffered extensive damage in her breasts due to the accident and that she has suffered considerable pain which will gradually improve over the years but the presence of lumps is likely to be permanent. In consequence she requires observation for at least five years to distinguish cysts from other lesions which could occur.

The injury to the jaw caused a problem with the appellant's teeth. She saw a specialist, Dr Wilkinson, in June 1994 who prepared a splint to prevent clenching of the teeth and to ease pain. Initially she wore the splint every night, but now only three times a week. On one occasion, in September 1995, her jaw locked and she required anti-inflammatory drugs.

The appellant claimed to have suffered from loss of memory and general forgetfulness. A CT scan of the head revealed no abnormality. The appellant consulted a neuropsychologist, Dr Reid, but evidence from him was not adduced. The learned Trial Judge saw no signs of these conditions whilst the appellant was giving evidence and he was not satisfied that she suffered from either of them or, if so, that injuries sustained in the accident was the cause.

The learned Trial Judge found that the subject accident aggravated a previous injury to the right shoulder of the appellant in that she suffered a soft tissue injury during the accident which was superimposed upon the previous injury and produced increased symptoms of pain. The appellant also sustained muscle spasm and tenderness on the para cervical muscles bilaterally and extending to the trapezius on the left shoulder. The learned Trial Judge found that these conditions with respect to the shoulders were caused by the subject accident.

The appellant suffered pain and discomfort in consequence of most of these injuries during the years following the subject accident and had various forms of treatment. The condition of her left shoulder deteriorated in February 1995. Investigation revealed significant bursitis and impingement and she had acromioplasty on 7 th  March 1995 at the same time as the surgery on her breast. The condition of the left shoulder improved but the appellant injured the shoulder again whilst working with a lateral pull machine at a gymnasium late in the year. The symptoms of pain persisted.

The injury to the hip continued to cause pain. By May 1994 it was the major cause of the discomfort suffered by the appellant. She had trochanteric bursitis. She was treated with cortisone but the symptoms persisted. MRI of the lumbar spine and hips was carried out but showed no abnormality. A bone scan was carried out in October 1994. The diagnosis was a lesion caused by a snapping psoas tendon over the bursa. There was continuing treatment for the hip but severe pain continued until the end of 1995 when the condition was much improved. However, the appellant continues to experience pain if standing or sitting for prolonged periods.

The injury to the wrist caused continuing symptoms of pain and discomfort. She had a pneumarthrogram on 16 th  August 1994 and arthroscopy of the wrist was performed and torn fibro cartilage was trimmed. The symptoms persisted. Indeed, the appellant had pain and discomfort in both wrists. The appellant was treated by Mr Bain with respect to the wrists. He is an orthopaedic surgeon with a special interest in the upper limbs. He found that the plaintiff was suffering from bilateral flexor carpi-radialis tendonitis and tears of the triangular fibro cartilage. On 5 th  June 1995 he performed bilateral wrist arthroscopy and he debridged the triangular fibrocartilage. The problems did not resolve and on 25 th  September 1995 he again operated on the right wrist and released the carpi-radialis tendon. He performed similar surgery on the other wrist during the following month. The appellant made steady progress and the condition in her hands and wrists had stabilised by March 1996. She still has some discomfort but the prognosis is good.

It will be remembered that prior to the accident, the plaintiff fell at Woolworths in late 1992 and injured her wrists. Whilst it is not entirely clear, it seems that the learned Trial Judge accepted that the pre-existing condition of the wrists was aggravated by the subject accident to some extent.

The appellant was referred to the Ashford Pain Clinic in July 1996 where she assessed by Mr Ravindran. She had aching in both wrist joints and soreness in the right groin. There was positive impingement in the left shoulder. She could not perform any activity with the arm above shoulder height. There was a full range of movement in her right shoulder. There was no tenderness in the wrists and movement and grip strength in each of them was satisfactory. According to Mr Ravindran, the symptoms in the left shoulder were due to a chronic inflammatory lesion in the subacromial space. On 29 th  August 1996 the subacromial space was infiltrated with celestone and lignocaine which was followed by physiotherapy. There was some immediate improvement in the condition of the shoulder but it was short-lived. By early 1997 the condition had returned to what it was before this treatment. In March 1997 the appellant complained of aching and pain in the right shoulder and in the trapezius muscle following her pushing a trolley. She was seen by Mr Aidinis, also of the pain clinic. His diagnosis was that she had myofascial pain syndrome and he manipulated her shoulder under anaesthetic. According to him, the pathology of this condition is unknown. Soon after, tender muscle in the shoulder was injected with local anaesthetic. It was expected that this treatment would cure symptoms for about six months, but the appellant only obtained temporary relief.

The appellant also claimed that she had suffered psychological and psychiatric injuries in consequence of the accident. She was referred by Mr Brown to Dr Williams, a psychologist, whom she first saw on 25 th  August 1994 and thereafter on a regular basis. The learned Trial Judge accepted the reports of Dr Williams which were admitted into evidence and found that by August 1994 the appellant was becoming increasingly depressed and tearful. She was diagnosed as suffering from moderate to severe depression. Dr Williams saw her once a fortnight and later once a month except for a period of about six months in the first part of 1995 when the appellant was treated by a psychiatrist, Dr Le Page. Dr Williams was of the opinion that the appellant's mental condition improved and would continue to improve if her physical condition improved. She expressed the view that the psychological condition would resolve with therapy and time and that her frustration and associated depression was directly attributable to her physical condition and the consequent restrictions on her everyday life and the uncertainty about her working future. Also her condition was compounded by ill health of her husband and daughter and the uncertainty about her own prognosis. In February 1997, Dr Williams expressed the opinion that the appellant would require regular treatment for about two years after these proceedings were finalised. However, this opinion was not accepted by the learned Trial Judge.

The appellant was referred to another psychiatrist, Dr Kutlaca, and she elected to be treated by him. It appears that the learned Trial Judge accepted the evidence and conclusions of Dr Kutlaca who said that the appellant had physical and non-physical problems and the latter transcended the former. His diagnosis was that the appellant suffered from a post-traumatic stress disorder and treated her accordingly. This condition had improved markedly by June 1996 and would not be a significant psychiatric disability. Psychiatric intervention would not be required after the claim was resolved and the appellant returned to the work force. According to him, the appellant was fit to resume work in February 1996 so far as her psychopathology was concerned and her inability to return to work was primarily due to pain in her left shoulder. He also expressed the opinion that upon resolution of her claim, the mental condition of the appellant would improve almost immediately.

Another psychologist, Dr Tomlian, saw the appellant on 16 th  July 1996 for vocational assessment. His opinion is succinctly expressed in a passage of a report accepted by the learned Trial Judge:

"[The appellant] feels she is physically incapable of returning to nursing duties that involve bending and lifting which rules out the majority of the traditional roles which are physically intensive in this profession. However counselling and advising of patients and parents, especially in the paediatric field is well within her capabilities but would require some retraining at the graduate diploma level. These courses usually involve one year of full time study or the equivalent in part time study over two years. Distance education may also be a preferred option while [the appellant] learns to live with her pain experience, through an institution such as Charles Sturt University who offer courses of this nature."

In a medical report, Mr Johnson, a specialist surgeon, who saw the appellant for medico-legal purposes at the request of the solicitors for the respondent expressed the opinion in early December 1995 that her neck injury had recovered and she was left with no permanent residual disability to her cervical spine or to her lumbo-sacral spine. He expressed the view that most of her disabilities were due to post-traumatic stress. He found nothing wrong with her hip even though she complained of problems in that area and he wrote that he was optimistic that a full recovery would take place. He described as "extra ordinary" the number of orthopaedic surgical procedures which had been carried out on her shoulders and wrists and expressed the view that no further surgical treatment was necessary.

Mr Cornish, an orthopaedic surgeon, saw the appellant on 13th April 1995 also for medico-legal purposes at the request of the solicitors for the respondent. He thought her symptoms would abate if she returned to work as a nurse, lost weight and improved her level of fitness. He thought that reactive depression was a very significant element of her clinical presentation. He did not think there was any need for further surgery or physiotherapy. He saw no need for the referral of the appellant to the pain clinic and he found no abnormality in her hands and wrists. He also expressed the view that even if the subject accident had not occurred, the pre-existing injury to the left shoulder would have resulted in deterioration due to physical work as a nurse. However, he accepted that given her condition subsequent to the subject accident, the appellant would have encountered problems in working as a nurse. According to him, the plaintiff had a general reduction in working capacity due to the condition of her shoulder.

The appellant also saw Mr Atkinson, who is also an orthopaedic surgeon, initially at the request of Mr Brown and later at the request of the solicitors for the respondent. He first saw her in July 1995 and again in August 1996. The learned Trial Judge stated that he accepted his evidence. In brief terms the evidence of Mr Atkinson is that the appellant had maximised her symptoms over the years to maximise her claim for damages in these proceedings and that she had focussed on her left shoulder for that purpose. He accepted that she had some minor disability in the musculo-skeletal area and he acknowledged that some of her problems had an organic base due to the surgical treatment. However, her problems were basically non-organic with some organic justification. In his opinion, she should be able to return to her normal duties as a neo-natal nurse but should avoid heavy lifting. He thought that if the accident had not occurred, she would probably have suffered some symptoms in the shoulder in the future. In his view the psychological component in the appellant's condition was related to the high amount of medical treatment which she received. He went so far as to express the view that she should move away from her health carers. He is cynical about pain clinics which he regards poorly.

It may be seen from this lengthy summary of the medical evidence that the learned Trial Judge was confronted with the need to make a choice between the competing opinions. Dr Brown had treated the appellant over a long period of time and had seen and examined her on many occasions. Dr Atkinson only saw the appellant on two occasions. The learned Trial Judge summarised the issue as follows:

"Mr Atkinson and others had said that there was no definite evidence of underlying pathology requiring surgical intervention. Mr Brown and others thought otherwise. Mr Atkinson and others thought that the plaintiff was being over-serviced, that she did not require further treatment and that she would be best off pursuing her own gym and hydro program without active intervention by health carers - Mr Brown and others thought otherwise. Mr Atkinson and others thought that the treatment undergone by the plaintiff was contra indicated and had been counter-productive. Mr Brown conceded that although the plaintiff's symptoms still persist he would not be offering any further surgical treatment. Other doctors are of a similar view. Furthermore Mr Brown concedes that in hindsight some of the things which he arranged for the plaintiff were not appropriate. Mr Atkinson and others, of course, had said so without the benefit of hindsight."

The learned Trial Judge preferred the evidence and opinions of Mr Atkinson. He said he was not impressed with the treatment by Mr Ravindran and Mr Aidinis and he was not impressed with their demeanour in the witness box and that he had no confidence in the opinions which they expressed. He also accepted the evidence of Dr Kutlaca. He proceeded to make the following specific findings:

1 As a result of the accident the appellant suffered organic and non-organic injuries.

2 The organic injuries were to multiple parts of her body which, he said, included lacerations to her tongue, bruising and lacerations to her chest, hips, forearms, elbow, knee, leg and ankle, an injury to her teeth and jaw on the left side of her mouth, and injuries to the left knee and injuries to her neck, back, both shoulders and both wrists.

3 As a result of the accident, during the course of her recovery, the appellant developed various problems, including pain in the groin which was due to the subject accident and resolved in a matter of months. Another problem was with respect to her vocal cords and voice which required speech therapy. She suffered much embarrassment and pain for a period of twelve months until about March 1996. Also she suffered from fat necrosis in her right breast which necessitated mammograms and surgery and aspiration of numerous cysts from time to time. The appellant will continue to suffer significant pain and this condition is permanent.

4 As a result of the accident, the plaintiff sustained an injury to her hip which resulted in considerable pain and was a major cause of discomfort. The probable cause was a soft tissue injury to the lumbar spine. The hip remains painful but the reason for that pain is of a non-organic nature.

5 The injury to the left knee settled after a period of some weeks.

6 The appellant suffered pain in the neck and elbow and wore a neck brace for some time. The condition settled after some weeks and there were no symptoms after about May 1994.

7 The appellant suffered from a pre-existing condition in each shoulder. However, each shoulder was injured in the accident and the nature of the injuries was of a soft-tissue nature. The injury to the right shoulder constituted an aggravation of the pre-existing shoulder condition. The injury to the left shoulder was of a much more minor nature.

8 The appellant suffered from a pre-existing condition in each of her wrists but, as has been seen, she suffered a fracture to the right wrist in the accident.

9 The learned Trial Judge reached the conclusion that the problems in the wrists were due entirely to the pre-existing condition but it appears that he overlooked the fracture of the wrist and the condition caused by that fracture. He concluded that none of the treatment of the wrists was necessitated by any injuries sustained in the accident but it would seem that he was in error in that finding.

10 The injury to the jaw was as a consequence of the accident and caused teeth clenching and bilateral temporal and bilateral neck headaches. This condition stabilised as at November 1995 but it is likely to recur as a result of stress. The appellant had a bite splint from July 1994 to November 1995 which she still uses three times a week. The learned Trial Judge said that she will require to use this splint for a period of 12 months.

11 As a result of the accident, the appellant suffered neck and temporal headaches bilaterally and frequently as a result of injuries sustained to her left temporo mandibular joint and facial muscles. She will continue to suffer headaches at times of increased parafunction and when under stress, the recurrence of which should be minimal after about 12 months.

12 The appellant has experienced significant and, at times, excruciating pain, suffering and discomfort throughout the whole of the period from the date of the accident to the date of trial. She has been subjected to many and different types of medical and paramedical and surgical treatment and has been subjected to treatment which was prolonged and painful. Her condition has adversely affected her marriage, including her libido as well as most of the social, domestic and recreational activities of her life. She will continue to suffer and experience pain and discomfort in her wrists and her shoulders for an indeterminate period of time. Such pain will be greater when undergoing activities requiring repetitive movements of her upper limbs when lifting objects weighing in excess of 5 kg with her arms outstretched and performing activities involving the use of her arms above shoulder level. Such pain will be reduced after the expiration of 12 months.

13 The problems associated with the pain and lumpiness in the right breast will remain with the appellant for her life. Although it is possible that there may be some improvement after the passage of time.

The learned Trial Judge, for the purpose of assessing damages for non-economic loss, selected a numerical value of 17 pursuant to s35A of the Wrongs Act. The prescribed amount for that purpose of $1,430 resulted in an award of $24,310.

The learned Trial Judge found that there was nothing in the nature and extent of the injuries suffered by the appellant in the subject accident which would have prevented her from working either as a registered nurse and midwife in the neonatal intensive care section of a hospital or as a nurse with Child, Adolescent and Family Health Service ("CAFHS") if she had been minded and truly motivated to do so. However, he said that she should complete a course at CAFHS in May 1998 before commencing work as a nurse with that organisation if it was her choice. In my view, this finding about working for CAFHS is inconsistent with the evidence of Ms Davies, the Director of Nursing of that organisation, who described the nature of the duties undertaken by the nurses and, in particular, heavy weights which they are obliged to routinely carry, four of which are eight, ten, eleven and twenty kilograms respectively. Also, her evidence does not suggest that employment with CAFHS would have necessarily been available to the appellant. The learned Trial Judge found that the appellant should be reintroduced into the work force on a gradual basis after completing psychiatric treatment. He accepted the opinion of Dr Kutlaca that by 18 th  June 1996 the appellant was not suffering from any psychopathology which would have prevented her from returning to the work force except distress and depression appropriate to her post accident "organic status". He noted that Dr Kutlaca had recommended that the appellant continue to take the drug Prozack for six to nine months after the completion of litigation and found that:

"...... that would be the time at which the non-organic factors would cease to operate upon the plaintiff; and that that would be the time from which, she would be able to return to the work force."

I think it is appropriate to interpret those findings to reach the conclusion that the appellant was able to return to work well before the trial if consideration is limited to her "organic" injuries, but given her psychological and psychiatric condition found to be a consequence of the subject accident, she was not able to return to work until much later.

The learned Trial Judge decided that he would make an award for economic loss on a broad axe basis, namely that the appellant should be compensated until the end of May 1999. He found, in effect, that by that time she would have recovered from all of her injuries, physical, psychological and psychiatric, and that her pre-accident earning capacity will have been restored by that time. He awarded $130,000 which he apportioned $78,000 as to the past and $52,000 as to the future and said that in doing so he had included an award for loss of a chance. Awards of $1,000 were made for voluntary services and $3,000 for future medical expenses.

The appeal challenges only the award for economic loss both past and future. Before considering the various contentions, it is appropriate to mention some further findings made by the learned Trial Judge. It was accepted by the parties that the starting point is that the appellant would have commenced the new employment at the Modbury Hospital on 1 st  May 1994 and would have continued to work in that employment, but for the accident. The learned Trial Judge found that had she done so and worked full time as a Level 2 Year 3 nurse performing neonatal and associated work on a full time basis, she would have earned $31,553 per annum net or about $607 per week net inclusive of penalty rates for weekend and night shift work if she had chosen to take full advantage of those opportunities. He also found that upon completion of the first year, the appellant would have been classified as a Level 2 Year 4 nurse and her earnings would have been $32,105 per annum net or $617 per week net. If she had taken employment with CAFHS, that employment would only have commenced after completing a qualifying course in May 1998 and her net weekly earnings would have been less. In the first year they would have been $503 per week on a full time basis and $294 per week on a part time basis. After the fourth year, they would have been $534 per week and $314 per week respectively. For the reasons already mentioned, I do not think it would be appropriate to assess damages on the basis that the appellant could have taken employment at CAFHS.

The learned Trial Judge also found that the employment at the Modbury Hospital involved full time work and an increase in income. Previously the appellant had been working at the Queen Victoria Hospital on a part time basis. The position at the Modbury Hospital involved an increase in salary and greater chances for promotion. After the appellant was unable to take up this position due to the injuries sustained in the subject accident, she was informed that she would not be offered that position. The learned Trial Judge described that consequence as a loss of a chance and concluded that it must be the subject of an award for damages.

The usual vicissitudes of life, early death, sickness, accidental injury, unemployment and industrial disputes had to be brought to account in the assessment of damages for economic loss as well as positive matters such as advancement in employment and increased earnings. He accepted that prior to the accident, the appellant had a good employment record.

Despite the appellant's evidence that she proposed to work full time, the learned Trial Judge found that although she would have worked full time on occasions and had available to her permanent night and weekend work with increased income, her prior work pattern at the Queen Victoria Hospital would have continued with the result that she would have taken time off work from time to time and on occasions she would have worked on a part time basis.

The first complaint is that the learned Trial Judge has miscalculated the basis of the award for past economic loss. If the appellant had taken the employment at the Modbury Hospital she would have earned $607 per week net in the first year and $617 per week in the subsequent year. Assuming that there was no increase in salary beyond the second year, her loss of earnings over the period of three years and 5 weeks if she worked on a full time basis would have been $98,848. Mr Walsh submitted that the net earnings at the Modbury Hospital would have been less than $600 per week and that the pre-trial loss should be assessed at $87,000 but I do not think that submission correctly reflects the evidence. The learned Trial Judge found that the appellant returned to work after the accident on two occasions in May 1994 and July 1994 and earned $2,979. He deducted those amounts from the award which he made. Taking the same approach, the calculations for past economic loss would be about $95,000. Pursuant to s35A(1)(d) of the Wrongs Act 1936, the net wages of $607 for the first week after the accident must be deducted. I would round off the award to $94,400. As has been seen, the learned Trial Judge awarded $78,000.

As has been seen, the learned Trial Judge found that the appellant would have worked reduced hours at the Modbury Hospital had she taken that position. He said:

"Her work history with the Queen Victoria Hospital, however, satisfies me to the appropriate degree that she had chosen to exercise her earning capacity in a part time fashion only and that she had taken time off work on several occasions. The plaintiff explained why that had been so. Her counsel urged me to accept her explanation and find that after May 1994 those reasons were non-existent and that her resolve to work full time would be maintained. I accept that some of the reasons for the plaintiff having worked part time before the accident would no longer have applied after May 1994. I further accept that from time to time the plaintiff would have had periods of full time work but the established facts of the past, in my opinion, make it less probable or unlikely that by the end of March 1994 the plaintiff had so changed her ways and patterns or that her circumstances had so changed that on and after May 1994 she would have worked full time and with no time off until age 60. I am not satisfied that she would have done so. In my judgment her prior work pattern would have been likely to have continued with the result that she would have continued to take time off work from time to time and that although the greatest majority of her period at work would have been on full time and at normal weekly hours, a substantial part of it would have been on a part time/reduced hours basis.

As to her working life, the plaintiff says, and I accept, that she had intended to work until age 60 with the possibility of working for some time past that age if a change in her personal circumstances should have warranted that course.

I am satisfied that in her new position at the Modbury Hospital the plaintiff would have had the opportunity of working permanent night and/or week-end shifts. I think that she would have taken advantage of that opportunity from time to time. I am of the opinion, however, that in the main she would not have done so."

However, her evidence, which the learned Trial Judge appears to have accepted, does not justify that finding. She said that she went on to part time duties, being seventy per cent of full time duties, after two years because she was acting in a temporary capacity and one of the permanent staff came back to claim one of the two temporary positions. The appellant had to be interviewed again for the position. She did not wish to apply again. She was looking for employment elsewhere. She did not want to return to the income of a position at a lower level. By taking a reduction in hours and moving back to the lower level, she would work seven days each fortnight and was able to work extra shifts without extended night duty.

In my view, the learned Trial Judge misunderstood the true position. Whilst it is true that the appellant reduced her hours at the Queen Victoria Hospital for this reason, upon transferring to the Modbury Hospital, she was to undertake a full time position as the contract of employment which was admitted into evidence shows. There was no evidence to suggest that the appellant would not have carried out her part of the contract and worked full time.

The learned Trial Judge was correct in bringing adverse contingencies to account in the assessment of past economic loss but it was necessary to also bring favourable contingencies to account. They include additional income due to new employment, additional shift work or promotion. If the appellant had taken up the employment at the Modbury Hospital, it is unlikely that she would have been promoted in the next three years or so. Additional shift work and a change of employment with a higher salary would have been possible but unlikely. The favourable and unfavourable contingencies did exist and neither were particularly significant given the sound working history of the appellant and her obvious desire to advance her career. Usually it is not unreasonable to balance out the adverse and favourable contingencies when assessing damages for past economic loss. In my view, such an approach is appropriate. The learned Trial Judge erred in his approach to the assessment of damages for past economic loss.

I now turn to the assessment of damages of $52,000 for future economic loss. This award represents two years at $26,000 per year or to be accurate a little more, because of the acceleration of payment.

In my view, this award is also inadequate. The rate of $26,000 per year is based upon the earnings of the appellant in the 1993 financial year and not the earnings she would probably have earned at the Modbury Hospital had she not been injured. As has been seen, the rate of earnings after the first year was $32,105 per week net. An allowance for two years should be $64,210, not $52,000 as assessed by the learned Trial Judge. The difference is not large but is significant.

As has been seen, the appellant sustained multiple injuries in the subject accident which have had a serious effect upon her even if mainly of a psychiatric or psychological nature. She has a sound employment history and has shown motivation for gainful employment and advancement in her chosen occupation. But for the accident, it is likely that she would have wished to continue working to age 60 years. Given her pre-existing conditions, particularly to her shoulders, it is possible that she would not have been able to do so even though they had not precluded her from working prior to the subject accident. That is a contingency which must be brought to account. However, by the time of the expiration of the period from the date of the accident until her recovery, as found by the learned Trial Judge, the appellant will not have been in employment for over five years. She will be aged 44 years. She will have to compete in the employment market with experienced nurses who have not been injured. She will have some disability in her shoulders, and one wrist due to the accident which will affect her capacity to work to some extent. The ability to employ her working capacity is compromised and will remain so well after the expiration of the two year period.

The appellant also contends that there are inconsistencies in findings of the learned Trial Judge and that the evidence justifies the conclusion that the physical injuries of the appellant have left her even more significantly disabled which further compromises her working capacity and on a permanent basis. It is unnecessary to examine these apparent inconsistencies as it is plain that the overall conclusion of the learned Trial Judge was to accept one body of expert evidence over another. He accepted the opinions and conclusions of Mr Atkinson, Mr Cornish, Mr Johnson and Dr Kutlaca in preference to those of Dr Matto, Mr Ravindran, Mr Aidinis, Mr Brown and Dr Williams. In doing so he, in the main, rejected opinions of treating experts. There must be good reasons to prefer the opinions of those who see a patient on a few occasions to those who have frequent contact as the providers of health services, however, this is an unusual case. The appellant had been subjected to an extra-ordinary amount of services without significantly beneficial results. The view that her major problems were inorganically based attracted wide recognition among most of the experts. I think the learned Trial Judge was entitled to the conclusion which he reached about which body of expert opinion to follow. True it is that there appear to be inconsistencies in his findings about some matters, but the thrust of his conclusions is clear and he was entitled to that view on the evidence. I do not think his primary findings on those matters should be disturbed.

Also, I do not think there is any sound basis to challenge the broad axe approach to damages for future economic loss by awarding damages for a period of two years given the general thrust of his findings. True it is that the appellant will have some residual disability of a minor nature in her shoulders and at least one wrist, but those disabilities are unlikely to reduce her working capacity in a significant way beyond the two year period.

Nevertheless, as I have said, the learned Trial Judge did make error in his assessment of damages for both past and future economic loss. As to past loss, the award should have been $95,000. As to the future, the award should not have been based upon the level of earnings in the 1993 financial year. The award for future economic loss should be increased accordingly which I would round off at $64,000. That award sufficiently embraces the minor disability caused by the subject accident which will continue indefinitely and which is not likely to prevent the appellant from working.

Consequently, I would allow the appeal and increase the award of damages by $29,000 to the total sum of $221,613.24. In the view of the lack of precision in fixing the award of damages for economic loss and because the basis of the award of interest has not been made known, I see no reason to alter that award.

WILLIAMS J

I agree with the order proposed by Cox J for the reasons which he has given.