West Moreton Regional Health Authority v Phillips

[1999] QCA 24

[1999]QCA 024

COURT OF APPEAL

McPHERSON JA
DAVIES JA
MACKENZIE J

Appeal No 4722 of 1998

THE WEST MORETON REGIONAL HEALTH
AUTHORITY (Defendant)  Appellant

and

SUSANNA DOROTHEA PHILLIPS (Plaintiff)            Respondent

BRISBANE

..DATE 18/02/99

JUDGMENT

DAVIES JA:  This appeal arises out of an accident suffered by the respondent Mrs Phillips during the course of her employment as a domestic servant with the appellant in February 1993.  The trial of her action for personal injuries arising out of that accident took place last year and the judgment appealed from was also given last year.

The liability of the appellant for the respondent's damages for personal injury was not in issue at the trial which proceeded only on the question of assessment of damages.  The total amount of damages assessed by the learned trial Judge was $124,770.15.  The components of that award relevant to this appeal, $15,000 for pain, suffering and loss of amenities, $34,212 for past economic loss, $39,738 for future economic loss, $6,000 for past care, $5,000 for future care, $2,500 for future medical expenses and $4,491 for loss of superannuation contributions.  There are some other consequential claims arising out of the appeal in respect of those components.

About lunch-time on the day of her accident the respondent slipped while carrying a stack of trays of crockery.  She fell to the floor hitting her head on a cupboard as she did.  She was dazed and shocked but not unconscious.  Within minutes she had pain in her neck.  It was the injury to her neck which was the source of continuing problems and the subject of the award of damages, the subject of this appeal.  She had some other minor injuries from which she recovered.

She saw a doctor shortly after her accident and was sent immediately for physiotherapy treatment.  She was off work for two months during part of which time she wore a neck brace.  She had symptoms of pain radiating from her neck down her left arm.  Prior to her accident the respondent had suffered from migraine headaches once or twice a month associated with her menstrual cycle.  From the time of her accident these increased in frequency to two or three times a week and that has continued.  They also became more severe.  She has continued to treat them as she did before the accident with Imigran tablets.

The respondent was born on 20 December 1941.  She was therefore 51 at the date of her accident and 56 at the date of trial and judgment.  Prior to the accident her intention had been to continue in her employment with the appellant until aged 60. 

Like many people of her age and in her occupation the respondent had a pre-existing degenerative condition of cervical spine which was deteriorating and which, even without an accident such as the one she suffered would have been likely to produce symptoms of pain and disability within 10 to 15 years from the date of the accident.

The physical symptoms resulting from this accident His Honour found would have abated by the time of trial, but there was some expert evidence before him, which he was entitled to and did accept, that there was a psychological condition which caused those symptoms to perpetuate. 
Consequently His Honour concluded that the symptoms which the respondent presented with at trial were initiated by the accident in which she suffered injuries in February 1993.  Those symptoms in substance to the ones I have mentioned, pain in her neck and the increase in frequency and extent of migraine headaches.  It was accepted by all witnesses called that the respondent's symptoms were genuine.

The learned trial Judge accepted that other events since her accident may have played a part in perpetuating or increasing those symptoms.  More importantly he accepted the medical view that some other unremarkable incident might well at any time have produced the pain which the respondent now suffers.  And that even without any further incident she would have had pain of that kind within 10 to 15 years of her accident.  These were, he rightly thought, substantial discounting factors in assessing damages.

The respondent made several attempts to return to work after the accident but these were unsuccessful.  Dr Gillett, an orthopaedic surgeon and whose evidence the learned trial Judge favourably referred thought that her efforts to return to work were creditable.  However, His Honour thought that the respondent's later attempts to obtain employment elsewhere were not as great as they might have been.  But he no doubt took into account her advancing age and limited skills.

She had at an early age worked as a sales person in a department store and for a period of only months as a secretary.  She also had language skills.  But since 1975 her only employment had been of a labouring kind, packing meat in a meatworks and more recently in the job in which she was engaged when she suffered her accident.  She had been working for the appellant for 13 years when she suffered her accident.

It is of some significance when considering the submissions made by Mr Griffin QC for the appellant in this appeal that the respondent had worked, as I have said, since 1975 in substantially what one might properly describe as labouring type work.

The appellant's strongest attack upon the damages was upon the component of nearly $40,000 for future economic loss.  It had been submitted in the written submissions in effect that either nothing or a very small sum should have been allowed under this head of damage, reliance being placed on a statement in His Honour's reasons referring to Dr Parker's evidence, Dr Parker being an orthopaedic surgeon, that the effect of her continuing symptoms was no longer referable to her fall. 

But Mr Griffin accepted before us that His Honour was speaking of orthopaedic symptoms only and that there were continuing symptoms which were psychological rather than physical.  What the respondent had done, according to psychological opinion which His Honour apparently accepted, was unconsciously to transpose psychological symptoms into physical ones, or perhaps I should say transpose a psychological predisposition into physical symptoms.

The amount of nearly $40,000 for future economic loss His Honour arrived at in the following way.  Taking her up to age 60 from the date of trial was a period of 3.75 years.  The earnings of a comparable employee were $440 net per week.  On the 5 per cent tables that amounted to nearly $80,000.  He then discounted that by 40 per cent for the possibility that some other incident might have caused her symptoms from which she now suffers.  He then discounted by another 10 per cent for the plaintiff's residual employability, the usual vicissitudes and contingencies and any improvement that may follow further therapy.  That resulted in a sum of a little under $40,000.

Mr Griffin rightly pointed out that the respondent had had substantial periods off work over the 11 and a half years since 1981, somewhere perhaps between 15 and 20 per cent of her working time.  But when looked at closely many of these are in consequence of normal illnesses, some of which such as a hysterectomy are unlikely to be repeated.

It does not appear however that this point, for Mr Griffin relies upon this for his argument that the discounting factor of 40 per cent plus 10 per cent was too low, was taken at the trial.  There was no attempt at the trial to show what periods, if any, off work prior to this accident were caused by psychological factors or indeed whether they had any effect upon her actual earnings.  In other words whether in fact they may have been covered by the periods for which she would be allowed compensation in any event without affecting her earnings or earning capacity.

His Honour, as appears from what I have said, made a substantial discount and in my view it is difficult to criticise such a broad-based exercise, at least without some factual basis.  And as I have mentioned none was established at trial and it may be doubted whether the argument loomed large there at all.

It is undoubtedly true that this was a high amount for this component of damage for what appears to be a minor neck injury, but it must be borne in mind that it was an injury to a person susceptible to those physical and psychological symptoms in consequence of an injury such as this. 

Once one accepts that this was an appropriate discount for the matters I have mentioned it is difficult to conclude in my view that the estimate was a wholly erroneous one.

It is true however that the learned trial Judge did not specifically advert to the matter relied on by Mr Griffin in this Court.

On the other hand having regard to the matters I have mentioned it is highly unlikely that he disregarded this possibility because of some transposition of some other event in her life into physical symptoms.

In my view because it seems to me much more likely than not that His Honour did take this into account and because in any event I find it difficult to see that a discount of 50 per cent on what would otherwise have been an amount for loss of earning capacity can be shown to be too little I cannot be satisfied that the amount awarded under this head was wholly erroneous.

The same must be said in my view for the component of past economic loss of about $35,000.  This was arrived at by taking the earnings of a comparable employee over a period from the date of the accident to trial, $100,000, deducting the amount actually earned by the respondent, $14,500 - I am using round figures here, leaving a net loss of $85,500 and then again discounting this figure by 40 per cent for the factors I have already mentioned and by a further 20 per cent to reflect the fact that the plaintiff had not made really serious efforts to obtain employment which she could have performed since her accident.  That left the sum of a little over $34,000.

It may seem curious that in assessing the components for past economic loss the learned trial Judge discounted by 20 per cent for the factor I just referred to whereas in assessing for future economic loss discounted by 10 per cent for this and other contingencies but in the latter case His Honour was entitled to conclude that the respondent from the time of trial would have been increasingly less employable and for that reason to have allowed a smaller component for the possibility that she may have obtained other employment.

The criticism made by the appellant that the past economic loss should have been limited to a period 12 to 18 months because of Dr Gillett's evidence to which I have referred which was contained in the written outline was not pursued on appeal.

Mr Griffin's argument on this appeal, being the one to which I have referred earlier, is that it is based on the likelihood that she would have had other periods off work which would have been disabling in any event probably because of her psychiatric condition.

The specific written submissions with respect to components for past and future care, pain and suffering, medical expenses and loss of superannuation benefits were that they too ought to have been confined to a 12 to 18 month period but it may be assumed from what I have already said that Mr Griffin does not pursue that aspect of the matter in this appeal.

The substance of his argument with respect to the component of $25,000 for pain and suffering and loss of amenities was that it started at too high a figure and that the starting point ought to have been not $25,000 but $15,000.

My own view is that $25,000 seems a very high figure for pain and suffering and loss of amenities as described in this case but as Mr Munro pointed out His Honour had arrived at the view that the respondent had a seven per cent loss of total bodily function as a result of this accident and he submits that $25,000 is not outside the range for a disability of that kind.

With some hesitation I am inclined to accept that view and consequently I would not interfere with the judgment below merely because of this component.

The total award in my view is also a high one but once it is accepted, as I think it must, from what I have said that His Honour's findings on the expert evidence which he accepted justified the conclusion which he reached that the accident caused physical symptoms and that it and those symptoms caused the conversion of a pre-existing psychological condition into disabling physical symptoms and that the latter have continued, the award which His Honour made and the judgment which he consequently gave was not a wholly erroneous one.

I would therefore dismiss the appeal.

McPHERSON JA:  I agree.

MACKENZIE J:  I agree.

McPHERSON JA:  The appeal is dismissed with costs.

-----