Black v Young

1. [1]

   BASTEN JA: I agree that the appeal should be dismissed with costs, for the reasons given by Sackville AJA.

2. [2]

   SACKVILLE AJA: This is an appeal from a decision of District Court (Truss DCJ) awarding damages to the appellant by reason of injuries sustained in a motor vehicle accident which occurred on 11 June 2009: Black v Young (District Court, 13 December 2013, unrep). Liability was admitted and the only issue at the trial was the assessment of damages. The appellant contends on the appeal that the damages awarded to her for economic loss and in respect of domestic assistance were inadequate.

The Issues

1. [3]

   The primary Judge gave judgment for the appellant in the sum of $115,250, made up as follows:

2. [4]

   There was no dispute at the trial that the appellant suffered a neck injury as a result of the accident. She also claimed that she had suffered a lower back injury and experienced continuing psychological difficulties in consequence of the accident. These claims were disputed.

3. [5]

   The primary Judge found that the appellant had not established that her back condition was caused by the accident. Her Honour accepted that the appellant had suffered a psychological injury in consequence of the accident, but did not accept that the injury reduced her earning capacity to the extent that she claimed.

4. [6]

   The appellant’s grounds of appeal identify two errors said to have been committed by the primary Judge. The first concerns her Honour’s finding that the appellant’s lower back injury was not caused by the accident. The appellant contends that this finding is based on a misapprehension of the evidence, in particular the appellant’s own evidence as to when she first experienced back pain after the accident.

5. [7]

   The second error identified by the appellant is that the primary Judge failed to explain why she did not award damages for diminution of earning capacity in consequence of the psychological condition sustained by the appellant. The appellant submits that the evidence supports a finding that her earning capacity was diminished by reason of her psychological condition to a greater extent than recognised by the primary Judge in her award of a “cushion” of $45,000.

6. [8]

   The appellant in her written submissions invites the Court, should she succeed in her principal submissions, to reassess damages. However, in his oral submissions Mr Sexton SC, who appeared with Mr Reimer for the appellant, accepted that there might be difficulties in this Court attempting to perform that task. His alternative submission was that the proceedings should be remitted to the District Court for a reassessment of damages.

Factual Background

1. [9]

   On 11 June 2009, the appellant dropped her son at school very early, as he was attending a camp. She manoeuvred her vehicle out from the kerb and stopped at a pedestrian crossing in order to allow children to pass. Her vehicle was at an angle of about 75 degrees from the kerb when it was struck forcibly by the respondent’s vehicle.

2. [10]

   At the time of the accident, the appellant was 37 years of age and, as the primary Judge found (at [4]), she was “healthy, energetic and vivacious”. She has four children, aged between 10 and 18 at the date of the accident.

3. [11]

   Both before and after the accident, the appellant conducted a distribution business, which she operated from her home under a business name. The business had at that time (and apparently retained at the date of the trial) contracts with two large organisations for the distribution of advertising material. In addition, the appellant’s business performed work for smaller local businesses. The organisations with which the appellant had contracts delivered advertising material to her home. She was responsible for sorting the material into piles which were collected and delivered by walkers. The walkers were paid directly by the organisations.

4. [12]

   At the time of the accident, the business was the appellant’s sole source of income, other than Government benefits. The evidence showed that in the 2008-2009 financial year (the accident occurring in the last month of that year), the appellant derived net income from the business of $44,942 on a turnover of $129,592. In the financial year following the accident, the appellant derived a net income of $35,835 from the business on a turnover of $120,993.

5. [13]

   On 15 June 2010, the appellant entered into a fixed term contract of employment with Spectrum Sales. The contract was for a period of eight and a half months and was to terminate on 1 March 2011. The appellant received a base salary of $42,000 per annum plus a car allowance of $12,500 per annum. The fixed term contract was not renewed beyond its expiry date.

6. [14]

   The business continued to operate in the 2010-2011 financial year and thereafter until the trial. However, while the appellant was working at Spectrum Sales, she had little involvement in her own business. During that period, the business was largely conducted by Ms Barton, a friend of the appellant.

7. [15]

   Ms Barton continued to work in the business after the appellant ceased to be employed by Spectrum Sales. Ms Barton’s evidence, apparently accepted by the primary Judge, was that she worked about one full day per week. The appellant did the administrative work, while Ms Barton did the rest, including the physical work.

Primary Judgment

1. [16]

   The primary Judge first considered whether the appellant had injured her back in the accident. Her Honour found (at [6]) that the appellant was shocked and could not recall being in pain immediately after the accident. She was taken by her partner on the day of the accident to see Dr Seville, a General Practitioner. Dr Seville saw the appellant on six occasions between the day of the accident and 16 July 2009.

2. [17]

   Dr Seville’s report, prepared on 4 August 2009, stated that by 8.00 am on 11 June 2009, the appellant noticed pain in her neck, radiating down her right arm to the forearm. Dr Seville’s diagnosis was a whiplash injury. He referred the appellant for an x-ray, which disclosed no fracture of the neck.

3. [18]

   Dr Seville also referred the appellant to a neurosurgeon, Dr Levy. Dr Levy’s diagnosis was exacerbation of chronic migraine headaches, daily tension-type headaches and persistent cervical pain following the whiplash injury (at [9]). He gave advice concerning appropriate medication and suggested an MRI scan, which showed that the brain was normal. An MRI of the cervical spine showed mild degenerative changes at C4/5 and C5/6 with no canal stenosis or nerve root compression (at [10]).

4. [19]

   In a passage criticised by Mr Sexton, the primary Judge said this (at [11]):

5. [20]

   The primary Judge referred (at [13]) to a report from Ms Pennicook, a physiotherapist who treated the appellant on 17 occasions between 30 June and 22 September 2009. Ms Pennicook’s report, dated October 2013, recorded that the appellant had presented with considerable pain in her neck and head. Ms Pennicook stated that after the first six treatments (that is, by the end of July 2009), the appellant had more range of movement, but was frustrated that her symptoms were continuing. Ms Pennicook went on to say (at [14]) that:

6. [21]

   The primary Judge then referred (at [16]) to the report of Dr Lowy, an Occupational Physician, Dr Lowy first examined the appellant at the request of the respondent’s insurer on 12 April 2010, some 10 months after the accident. Dr Lowy recorded the following history:

7. [22]

   The primary Judge found (at [18]) that the first contemporaneous report of lower back symptoms was made by Dr Rankin, who examined the appellant on 12 October 2009 at the request of the respondent’s insurers. Dr Rankin reported that the appellant complained of lower back pain, pain down the back of both her legs and paraesthesia of both legs. Dr Rankin was unable to offer any useful opinion as to the appellant’s actual diagnosis.

8. [23]

   The primary Judge concluded (at [19]) as follows:

9. [24]

   The primary Judge then dealt with the injury to the appellant’s neck. Her Honour found (at [20]) that although the appellant’s symptoms in her back were considerably more severe than in her neck, she also suffered constant pain in her neck, with restriction of movement and pins and needles in her right arm.

10. [25]

    The primary Judge referred again (at [23]) to Dr Lowy’s report of 12 April 2010. Dr Lowy concluded on the basis of his examination on that day that the appellant had suffered a whiplash type injury which had resolved within a matter of weeks. When Dr Lowy re-examined the appellant on 3 June 2013, he recorded that the appellant emphasised her neck and trapezius region pain and discomfort more than in April 2010. Dr Lowy concluded that any work incapacity or reduced capacity to engage in domestic duties was due to the appellant’s back problems which, in his view, were unrelated to the accident (at [24]).

11. [26]

    The primary Judge then turned to the appellant’s case that she had suffered a post traumatic stress disorder with a pain syndrome and depressive features in consequence of the accident. The primary Judge said (at [25]) that there was no dispute that the appellant had suffered a psychological injury arising from the accident, although there had been various opinions as to its nature. Her Honour accepted (at [26]) that the appellant was a different person at the date of the trial than she had been before the accident.

12. [27]

    The primary Judge summarised (at [28]) the assessment prepared on 20 October 2010 by Mr Glancey, a psychologist, at the request of the appellant’s solicitors. Mr Glancey:

13. [28]

    The primary Judge referred to reports prepared by two psychiatrists, Dr Williams and Dr Smith. Dr Williams saw the appellant on six occasions between September and November 2011. According to the primary Judge (at [30]), Dr Williams considered that:

14. [29]

    The primary Judge quoted (at [32]) Dr Williams’ opinion in a report of 13 December 2011:

15. [30]

    Dr Smith assessed the appellant, at the request of the respondent’s solicitors, on 18 July 2013. The primary Judge recorded (at [36]) Dr Smith’s diagnosis that the appellant was suffering from an adjustment disorder with mixed depressed and anxious mood, chronic in duration. In Dr Smith’s opinion, the appellant was focussed on her pain and significant psychological factors were playing an important role in the severity, exacerbation and maintenance of her pain (at [37]). However, Dr Smith expressed the opinion that from a psychiatric point of view the appellant was not incapacitated for work (at [38]). He reported that her main restrictions had been physical and these had caused her to delegate to others tasks that she could previously perform. He also expressed the opinion that, from the psychiatric point of view, there was no requirement for any restrictions to be placed on the appellant in regard to her capacity to work and that she did not require care or domestic assistance as the result of psychological injuries she sustained in the accident.

16. [31]

    The primary Judge referred (at [43]) to the appellant’s evidence that following the accident she needed assistance to conduct her business. That assistance was provided for a time by her partner, who helped her with lifting and sorting pamphlets and doing some deliveries. The appellant then engaged Ms Barton to assist her on a part time basis. Ms Barton’s evidence was that she started to assist the appellant because she (the appellant) found the physical aspects of the business too difficult for her (at [43]).

17. [32]

    The primary Judge rejected (at [47]) the appellant’s claim that the fixed term contract with Spectrum would have been renewed but for the health issues and that she had suffered economic loss in consequence. Her Honour said that:

18. [33]

    The primary Judge referred (at [50]) to the appellant’s evidence that after her employment at Spectrum Sales had come to an end, she tried to return to her business but had difficulty doing the heavy lifting and was not very well emotionally. The business had continued, with Ms Barton effectively running it, apart from the administrative tasks performed by the appellant.

19. [34]

    The primary Judge set out (at [42], [52]) a schedule of the appellant’s earnings before and after the accident. Her Honour said it was curious (at [53]) that the appellant’s earnings for the year ended 30 June 2010 were similar to those of the previous financial year (in which the accident occurred) and that the moneys paid to contractors were more or less the same in each year.

20. [35]

    The primary Judge approached the assessment of past economic loss as follows:

21. [36]

    Her Honour dealt with future economic loss as follows:

22. [37]

    The primary Judge found (at [74]) that the medical evidence did not support any need for domestic assistance in the future because of the psychological injury, although she accepted that the [appellant] had become “somewhat pain focused”. Her Honour pointed out (at [78]) that the only diagnosis of the appellant’s neck injury was a soft tissue strain. However, her Honour found (at [76]) that the appellant had established a need for domestic assistance due to her neck restrictions and that the proper allowance was six hours per week for the first year after the accident.

Reasoning

1. [38]

   Mr Sexton submitted that the primary Judge should have found that the appellant experienced lower back pain very soon after the accident. Mr Sexton contended that the primary Judge’s finding (at [19]), that the appellant had not discharged the onus of proving that her back condition was causally related to the accident, depended on her Honour correctly finding that there was a gap of at least some weeks between the accident and the onset of the appellant’s symptoms. If the appellant had in fact experienced lower back pain almost immediately after the accident, so Mr Sexton argued, the primary Judge’s reasoning could not stand.

2. [39]

   Mr Sexton accepted that Dr Seville’s report gave no indication that the appellant had complained of back pain in any of the six consultations that Dr Seville had with her between 11 June 2009 and 16 July 2009. But he submitted that the appellant had given uncontradicted evidence that she had experienced back pain from the outset and that the primary Judge had failed to deal with this evidence.

3. [40]

   Mr Sexton identified what he said was an internal contradiction in para [11] of the Primary Judgment (reproduced at [19] above). The contradiction was between the third sentence (the appellant developed pain in her back “some weeks later”) and the final sentence (she said that initially the neck pain was more severe and concerned her more than the back pain).

4. [41]

   The passage of evidence on which Mr Sexton relied was in the appellant’s evidence in chief. The passage (including some preliminary questions) is as follows:

5. [42]

   It is difficult to see how the last question and answer in this passage can be read as asserting that the appellant experienced lower back pain more or less from the outset. The appellant’s counsel asked her to confirm that it was “no secret” that the back problem did not emerge “for at least some weeks”. She did indeed confirm that proposition. The next question and answer has to be understood in context. The fifth question in the passage directed the appellant’s attention to “those first days and weeks after the accident”. The appellant then accepted that the back problem did not emerge for several weeks after the accident. The final question and answer can only be understood as meaning that she did not complain about back pain during the period when she was seeking Dr Seville (a period that continued until five weeks after the accident), because she was more concerned about her neck pain than her back pain. The answer cannot be understood as a claim that, notwithstanding the previous question and answer, the appellant experienced lower back pain immediately or very shortly after the accident.

6. [43]

   This interpretation of the appellant’s evidence is supported by a passage in her cross-examination as follows:

7. [44]

   The appellant saw the physiotherapist on 17 occasions between 31 June 2009 and 22 September 2009. The physiotherapist’s report, referred to by the primary Judge, stated that after the sixth visit (which took place on 28 July 2009, some seven weeks after the accident) she noted that there was “pressure sensitivity” on the appellant’s lower back. In her cross-examination the appellant said that she mentioned her back condition to the physiotherapist, but she never specified when she did so. Leaving aside that the physiotherapist’s report does not record the appellant mentioning back pain, the appellant’s evidence is quite consistent with the primary Judge’s finding as to the delayed onset of symptoms.

8. [45]

   There was other evidence supporting the primary Judge’s finding. Dr Lowy’s report of 12 April 2010 records that:

9. [46]

   Read in the light of the evidence, there is no inconsistency between the third and fourth sentences of para [11] of the Primary Judgment. The third sentence accurately summarises the appellant’s evidence as to the onset of symptoms. The fourth sentence accurately summarises her evidence as to the relative levels of pain from her neck and back, once the back pain manifested itself.

10. [47]

    The difficulties facing the appellant’s argument seem to have been apparent to the appellant’s counsel at the trial. No submission was made to the primary Judge that her Honour should find that the appellant experienced back pain almost immediately following the accident. Counsel seems to have agreed with a comment made by the primary Judge during oral argument that the appellant’s back symptoms first appeared some weeks after the accident occurred.

11. [48]

    Counsel submitted at the trial that the “temporal connection” between the appellant’s back condition and the accident was established “even if it’s down to some three or four months”. Counsel was apparently submitting that even though there was a delay between the accident and the onset of lower back symptoms, a causal link between the two could be established. The primary Judge did not accept the submission and Mr Sexton did not repeat it in this Court.

12. [49]

    Mr Sexton correctly acknowledged that the appellant’s case on causation at trial rested principally on the evidence of Dr Woo, an orthopaedic surgeon. Dr Woo expressed the opinion that the appellant had suffered strain injuries to both her neck and back and that those injuries were consistent with the history of the accident. However, Dr Woo’s opinion assumed the accuracy of the information with which he was provided. He was informed that the appellant reported pain in her back within two hours of the accident. Mr Sexton accepted that once a finding is made that the appellant’s back symptoms did not appear until some weeks after the accident, no reliance can be placed on Dr Woo’s opinion as to causation.

13. [50]

    For these reasons, the appellant’s first submission fails.

14. [51]

    Mr Black SC, who appeared for the respondent, acknowledged that some aspects of the primary Judge’s reasoning are “expressed somewhat obscurely”. Her Honour’s reasons for rejecting the appellant’s claim that the failure to renew her fixed term employment contract was causally related to the accident are clear enough. It is also clear, despite suggestions in the appellant’s written submissions to the contrary, that the primary Judge found that the appellant suffered psychological injury as a consequence of the accident. (Her Honour’s award for future out of pocket expenses included an allowance for treatment in respect of her psychological injury.) But her Honour’s analysis of the relationship between the appellant’s psychological condition, insofar as it can be attributed to the accident, and her diminished earning capacity is not entirely clear.

15. [52]

    One complaint by the appellant is that the primary Judge did not resolve the conflict between the opinion of Dr Williams and Dr Smith. Her Honour summarised the substance of the psychiatric reports, but did not expressly state which opinion she preferred. Her Honour accepted (at [55]) that in determining economic loss, it was necessary to take into account the incapacity flowing from the appellant’s psychological condition “which has been addressed by the medical practitioners in the defendant’s case”.

16. [53]

    Mr Black interpreted the reference to the “defendant’s case” in [55] as a mistake for the “plaintiff’s case”. In any event, he did not submit that [55] should be read as expressing a preference for Dr Smith’s opinion over that of Dr Williams. The consequence is that Mr Sexton is correct to submit that her Honour did not resolve the difference of opinion between the psychiatrists.

17. [54]

    Another apparent omission in the judgment, although Mr Sexton did not complain about it, is that the primary Judge referred (at [60]) to s 126 of the Motor Accidents Compensation Act 1999 (NSW) (MAC Act), but did not explain how the section operated in the present case. Section 126 provides as follows:

18. [55]

    The authorities establish that a claimant must establish a diminution in earning capacity resulting from the injury he or she has sustained, but is not required to identify with precision the value of that loss: Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13; 83 NSWLR 302 at [25] (Basten JA), referring to State of New South Wales v Moss [2000] NSWCA 133; 54 NSWLR 536 at [70]-[71] per Heydon JA. It has been accepted since Penrith City Council v Parks [2004] NSWCA 201, that it is not inconsistent with legislation in the form of s 126 of the MAC Act in appropriate cases to award a buffer to compensate an injured person for the possibility that he or she may suffer economic loss in the future as the result of a loss of capacity to earn income: Allianz Australia v Kerr at [67] (Macfarlan JA); at [3] (McColl JA); at [30] (Basten JA)

19. [56]

    Her Honour rejected (at [58]) the appellant’s submission that she should be awarded damages assessed at $850 per week until age 67, subject to the usual discounts. Instead her Honour considered (at [59]-[62]) that this was an appropriate case to award a buffer or “cushion” for future economic loss, which she assessed at $45,000. Her Honour’s reasons for doing so are expressed economically, but she took into account a number of matters:

20. [57]

    I did not understand Mr Sexton to dispute that it was open to the primary Judge to rely on the matters I have identified as supporting her decision to award a sum as a buffer, subject to one qualification. He submitted, however, that a passage in the appellant’s evidence established a link between the psychological condition and a diminished earning capacity. The passage is in the appellant’s examination in chief as follows:

21. [58]

    This evidence is at a high level of generality and does not differentiate between the appellant’s physical difficulties (most of which her Honour found not to be causally related to the accident) and her emotional difficulties. Nor does it descend into particulars as to how her emotional state impaired her capacity to earn income. More specific evidence was important because the financial records, as the primary Judge found, did not suggest that her physical and psychological injuries (leaving aside her lower back condition) had a marked adverse effect on her earning capacity.

22. [59]

    In these circumstances I do not think that the appellant has shown that the primary Judge was in error in awarding a buffer, nor that the sum awarded was outside the range having regard to the evidence before her.

23. [60]

    Mr Sexton also challenged, albeit rather faintly, the primary Judge’s conclusion that she could not be satisfied that the appellant’s contract with Spectrum Sales had not been renewed because of health problems attributable to the accident. The primary Judge correctly recorded (at [47]) that the appellant believed that the failure to renew the contract was because she was experiencing physical and emotional difficulties associated with the accident. But her Honour was entitled to rely on the absence of evidence from the appellant’s employer and the general nature of the appellant’s evidence, which did not differentiate between her lower back condition and other problems that might have been causally related to the accident. The award for past economic loss has not been shown to be affected by error.

24. [61]

    The appellant’s challenge to the primary Judge’s rejection of the claim for damages for domestic assistance falls away with the rejection of her other arguments.

Orders

1. [62]

   The appeal must be dismissed. The appellant must pay the respondent’s costs.

2. [63]

   ADAMSON J: I agree with Sackville AJA.