BALDWIN v LISICIC

Court of Appeal (NSW)|1993-03-30|Before: Kirby P

BALDWIN v LISICIC SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, PRIESTLEY and MEAGHER JJA 30 March 1993, 20 April 1993

DAMAGES - personal injuries - motor vehicle accident - painful and prolonged injuries to face, back and legs - long-term loss of work as consequence - husband takes injured wife to England for treatment - treatment affords quick relief - return to work and economic capacity - whether entitled to travel costs of proceeding to England for treatment which is available in Australia - whether entitled to future physiotherapy expenses as part of treatment in England - held: The costs of travel to England were, in the circumstances, reasonably incurred and recoverable.

Fox v Wood (1981) 148 CLR 438; Simonius Vischer and Co v Holt and Thompson [1979] 2 NSWLR 322 (CA) applied.

DAMAGES - female plaintiff - retirement at 60 - whether discrimination - calculation of economic loss - whether should be calculated to age 65 - held: Given the provision of Australian pension rights, in the absence of explicit evidence from the female plaintiff that she contemplated a later retirement, calculation of economic loss to age 60 showed no error.

DAMAGES - personal injuries - gratuitous services - services provided by husband - calculation by reference to commercial costs of household service company - whether subject to discount for profit and overhead components - held: No such discount appropriate - error of law to so provide.

Van Gervan v Fenton (1992) 66 ALJR 828 (HC) applied.

PRACTICE and PROCEDURE - Court of Appeal - fresh evidence - damages judgment for reassessment by Court of Appeal - tender of new diagnosis of cause of pain requiring possible future dental treatment - whether such need established - whether, if established, such evidence should be admitted - held: Whether or not the evidence would be admitted in support of a fresh trial, it could be admitted in the conduct by the Court of its own function of reassessment.

Motor Vehicles (Third Party Insurance) Act 1942, s35B. Motor Vehicles (Third Party Insurance) Amendment Act 1984, Schedule 3. Supreme Court Act 1970, s75A(8). Social Security Act 1991 (Cth), s43.

Kirby P This is an appeal from a judgment entered in a personal injuries damages case by Master McLaughlin. Raised in the appeal are a number of issues concerning the proper approach to the award of damages for personal injuries. As evidence was offered before this Court concerning the medical opinions secured since the trial, the appeal also raises an issue concerning the circumstances in which this Court will entertain the admission of such fresh medical evidence.

Serious injuries received in a motor vehicle accident Mrs Joan Baldwin (the appellant) was born in 1943 in Sheffield, England. On 28 March 1984, then aged 41 years, she was injured in a motor vehicle accident. She sued Rosemary and Marin Lisicic (the respondents) being respectively the driver and owner of the motor vehicle which struck her. The respondents did not dispute liability. The

hearing of the appellant's claim proceeded as an assessment of damages. In the circumstances, it is unnecessary to describe the precise way in which the accident occurred.

The personal background of the appellant is relevant. She migrated to this country in 1961, shortly after her marriage. On their arrival, both the appellant and her husband secured work: he as a bricklayer and she as a typist. From that time until the date of the accident, the appellant was in regular employment, except for a short period after the birth of her child. In the six years immediately prior to the accident, the appellant was employed as secretary to the General Manager of a company known as Presto Meats Ltd. This was a demanding job from which she secured much satisfaction.

The appellant and her husband lived in Sydney for most of their time in Australia. A few weeks before her accident they purchased a home in Bexley, a Sydney suburb. They also owned a "hobby farm" near Mudgee, comprising 44 acres, which they had purchased in 1981 for $12,000. Before the accident the appellant enjoyed good health. She did not suffer from any particular physical problem.

The motor vehicle accident came as a dramatic interference in this relatively happy and successful life. Immediately following impact by the motor vehicle, the appellant was conveyed to Royal South Sydney Hospital where she remained for 5 days. She suffered injuries to her head, including damage to her face (especially her nose) and to her teeth. Her neck and cervical spine were injured, as were her lower spine, shoulders, both arms, right hip and both legs. She suffered fractured ribs and general bruising and lacerations.

As a result of the injuries to her teeth, the appellant had to undergo substantial dental treatment and suffered difficulties in eating and drinking. The dental treatment included procedures conducted under general anaesthetic. As a result of the injuries to her face, the appellant underwent plastic surgery on two separate occasions involving reconstruction of her nose. This surgery was successful. The fracture of the right clavicle required bone grafting, the insertion and later removal of a plate and screws. Upon her initial discharge from hospital, the appellant was totally incapacitated for work. She was seen by a variety of specialists both for treatment and for rehabilitation.

As can be imagined, with such a variety of injuries, the appellant remained in a state of constant pain for some time after the accident. The medical practitioners who attended her prescribed a multitude of drugs, including painkillers and anti-depressants. The appellant was taking up to 8 or even 10 different drugs a day, usually averaging 6 medications. By the end of October 1988, she was still experiencing constant pain in her back. She had to spend much time in bed. She was suffering hallucinations which she attributed to her profound drug therapy.

The appellant's pain limited her in her activities; both her normal household chores and in the work which she had found so satisfying. Her employment with Presto Meats was terminated in 1986. The Master accepted that, from the date of the accident until about 22 March 1990, the appellant was unable to work as a result of her disabilities. This finding appears sound having regard to the evidence.

At the end of August 1986, the appellant and her husband quit their home in Bexley and moved to the hobby farm in Mudgee. This move was attributed to the burden of medical and legal expenses occasioned by the accident. In Mudgee, the appellant and her husband lived for two years in unserviced accommodation

described as a "shed" which had been constructed by the appellant's husband. The appellant did not cope very well under these circumstances. The couple enjoyed no social life. The appellant continued to receive medical treatment from local practitioners. On a number of occasions she was admitted to Mudgee Hospital. Her treatment in Mudgee included acupuncture and chiropractic treatment as well as physiotherapy.

By the middle of 1987, the appellant and her husband were becoming deeply concerned at the apparent lack of improvement in her level of pain, in particular the seeming inability of the appellant's medical practitioners to control the persisting pain in her back. Because the pain was constant, and not intermittent, the appellant began to feel suicidal. She could see no light at the end of the tunnel into which the accident had plunged her. It became necessary for the appellant to obtain regular psychiatric treatment as well as psychological counselling. Master McLaughlin found that her condition was one of "chronic invalidism" and that she had been largely confined to her residence, by this stage as a result of her disabilities. Again, this finding appears sound.

It was in these circumstances that the appellant's husband decided to travel to the United Kingdom in the hope that he might find there a medical practitioner who could help solve his wife's problems. As a measure of the couple's desperation at this time, correspondence was tendered showing letters written by the appellant's husband to the local Member of Parliament who had, in turn, written to the Minister for Health.

By the end of October 1988, the appellant was essentially confined to her bed as a result of the severe back pain. She was sleeping poorly and still suffering hallucinations. In Sheffield, Mr Baldwin ultimately contacted Dr Jan Jakubowski. He was a consultant neuro-physician whose qualifications the Master found to be "highly impressive". Dr Jakubowski reviewed the reports on the appellant's condition which her husband had taken with him. He suggested that he could provide treatment which might help to relieve her of some symptoms.

The appellant was reluctant to return to the United Kingdom. However, when she received a letter from the Minister of Health advising that there was no further or different treatment available she decided to take this apparent last chance for relief. She left for England on 9 April 1989 carried onto the aircraft in a wheelchair.

The appellant came under Dr Jakubowski's care. The Master found that his treatment was "both simple and extraordinarily effective". The appellant clearly had become addicted to some of the many drugs prescribed by her Australian physicians and Dr Jakubowski first undertook to wean her off those drugs. He prescribed a simple regime of exercise and physiotherapy, which he supervised. He also commenced an intensive rehabilitation programme, including hydrotherapy. The appellant's husband was an active participant in assisting her during this rehabilitation. He helped her with her exercises, with swimming and in building up her walking capacity. Dr Jakubowski was of the opinion that Mr Baldwin played a "very important" role in her first period of rehabilitation.

The appellant returned to Mudgee in June 1989. She continued the course of rehabilitation so far as she was able. Her condition began gradually to improve. She returned to England in October 1989 for further treatment under Dr Jakubowski's care. This second session was expressly recommended by Dr Jakubowski. At the end of it, the appellant felt much stronger. Again she returned to Australia in November 1989.

It was at this time that the appellant particularly noticed a pain apparently in her neck and thoracic spine. This pain manifested itself in the form of a constant ache. However, her overall condition had improved to the point that she registered for work with the Commonwealth Employment Service. Indeed, in March 1990 she secured a job as a casual secretary/receptionist at the local radio station. By June 1990 she was asked to work full time in this position and she agreed. However, by August 1990 she began to notice difficulties in reconciling her full time work with her rigorous regime of swimming and rehabilitation exercises. She discovered that sitting at the typewriter full time caused her pain in the neck and thoracic spine. She therefore reduced her work hours back to part-time duties until she ceased work at the end of September 1990. She explained her termination of work as being the result of pain in the back.

At this time the appellant and her husband decided to return to Sydney because of lack of bricklaying work for him in Mudgee. On their return, in August 1990, the appellant again sought casual work. However, by the time the trial came on for hearing in February 1991 the appellant had not been able to secure such work although she gave unchallenged evidence that she had actively looked for it.

At the trial the appellant stated that, although her condition had significantly improved, she was still not capable of undertaking a full time job. To improve her chances of getting work she underwent a four week word-processing course. This was where matters stood when the case came before the Master for assessment.

The trial took place over three days in February 1991. The Master delivered his decision on 23 July 1991 with further reasons given for interest and recalculation of the judgment on 14 October 1991.

Having reviewed the evidence set out above and expressed generally favourable impressions of the appellant and her husband and their efforts together to overcome the appellant's disabilities and restore her to ordinary enjoyment of life, the Master entered judgment in the sum of $373,326.49. This was made up as follows:

$ Past economic loss 101,818.40 Interest on past economic loss 55,363.75 Past out-of-pocket expenses 66,258.00 Past gratuitous care 50,000.00 Future loss of earning capacity 54,036.00 Future out-of-pocket expenses 2,000.00 Fox v Wood component 6,257.00 General damages 70,000.00 Total 405,733.15 Less: Deduction for over-estimate of interest on past 32,406.66 economic loss Total (adjusted) judgment 373,326.49

The appellant has appealed to this Court raising eight heads of challenge to this judgment. The grounds of appeal criticise:

The adoption of 5% rather than 3% as the discount rate for the calculation of future loss of earning capacity;

The calculation of the future economic loss to the age of 60 rather than 65 years;

The failure to include interest on past general damages;

The suggested error made in the approach to, and calculation of, amounts payable in respect of the gratuitous care for the appellant given by her husband;

The disallowance of the travel costs of proceeding to the United Kingdom for the treatment given by Dr Jakubowski;

The suggested inadequate allowance by way of general damages; and

The failure to provide for disabilities established by fresh evidence available to the Court of Appeal but not available at the time of trial.

By the Motor Vehicles (Third Party Insurance) Act 1942 as amended by the Motor Vehicles (Third Party Insurance) Amendment Act 1984, s35B provides that the appropriate discount rate in respect of future loss of earning capacity is 5%. However, this amendment to the law does not apply to causes of action which arose, as the appellant's did, before 1 July 1984. At the time the appellant's injuries occurred, the appropriate discount rate was, by the common law, 3%. The Master allowed for future loss of earning capacity of $114 per week over twelve years and then discounted that sum by application of the 5% tables. The difference between the two approaches is $6,064. The respondents concede this error and the need to recalculate the appellant's damages to add this component. This should be done.

The appellant complained that the Master erred by restricting the period over which the future loss of her earning capacity should be calculated to 12 years rather than 17 years. It was suggested that, but for injury, the appellant would have worked to the age of 65 years. It was argued that the Court should not discriminate against female plaintiffs such as the appellant. She had enjoyed her work as an executive secretary to the manager of a large company. Because anti-discrimination law now prohibits forced retirement simply on grounds of age, it was submitted that the proper approach to the calculation of the damages in this case would have been to have calculated the appellant's loss at least to the age of 65 years.

That there was a loss of earning capacity was clear from the evidence. That evidence depended most importantly on the appellant's own excellent pre-injury work history and her apparently genuine efforts to return to work to the full extent of her work capacity. Obviously, the necessities of her regime of physiotherapy and exercise would reduce, to some extent, her work capacity. Her particular injuries and disabilities also reduced her work capacity as a secretary. The evidence suggested that she would need a sympathetic employer and could only work to a part-time capacity. The Master's finding that it was undesirable that the appellant should return to full-time employment was obviously sensible and justifiable in these circumstances. But the question remains whether both in the assessment of the loss and of its duration the Master fell into error.

In my respectful view, no error is demonstrated under this head. If there is discrimination in respect of pension rights, it is founded, at least in this country, in current Federal legislation. See Social Security Act 1991 (Cth), s43. Whether that legislation will be altered in the future is a matter for speculation. At the trial, the appellant did not seek to make out a case that she would have worked beyond

the age of 60 (when she would have been entitled by law to retire and receive an Australian pension). If she had an intention to work beyond that age, it would then have been expected that some evidence would have been given on her part of such intention. It was not. I therefore see no error in the calculation of the duration.

So far as the quantification of loss is concerned, the Master found that it would be unduly pessimistic to proceed on the basis that the appellant would not, in the remaining 12 years of notional work capacity, be capable of resuming full-time employment. That was one possibility. It rested upon the Master's assessment of the appellant and of the medical evidence before him. In these circumstances the approach to the appellant's future economic loss, by way of awarding her one-third of her total nett earnings, seems appropriate. It allowed for a substantial component of diminished work capacity but also the possibility (no higher than that) that the appellant would continue to improve and would ultimately resume full-time work with her enhanced word processing skills.

I see no such error in the calculation of this part of the appellant's damages as would warrant this Court concluding that the Master had erred and that this Court was authorised to substitute its own view under this head. However, even if I were to recalculate this head of damages I would not award the appellant more by way of damages for future loss of economic capacity. The second ground of challenge fails.

The appellant by her statement of claim applied for "proper interest pursuant to the Supreme Court Act". The Master did not allow any interest on the sum awarded for general damages in respect of past general damages. The appellant's cause of action arose before 1 July 1984. Accordingly, the restriction on the award of interest on general damages contained in s35D of the Motor Vehicles (Third Party Insurance) Act 1942 did not apply to her case.

It is a rare case in which interest on past general damages ought to be refused. Cf Falkner v Bourke (1990) 19 NSWLR 574 (CA), 576. The Court confirmed that only in rare circumstances should the Court refuse to award interest under s83A(1) of the District Court Act 1973. This approach likewise applies to s94 of the Supreme Court Act 1970. See John Fairfax and Sons Ltd v Kelly (1987) 8 NSWLR 131 (CA). The respondents complained that the appellant had only made her claim for interest "in the most general of terms". It was said that interest was not expressly claimed in address or at any other time during the trial. In the light of the principle in Falkner I do not believe that these failures stand in the way of the recovery of the normal amount of interest.

The appellant submitted that the appropriate award for past general damages should be half of the $70,000 which was awarded in total under this head. I would agree with this submission. Accordingly, the appellant is entitled to recover interest on $35,000. The appellant further submitted that interest should be allowed at the rate of 2% following the principle in MBP (SA) Pty Ltd v Gogic (1991) 65 ALJR 203 (HC). See also Stenning and Anor v Johnson, Court of Appeal, unreported, 18 April 1991 and Doherty v Liverpool District Hospital (1991) 22 NSWLR 284 (CA), 288-9. The respondents did not dispute that rate.

Accordingly, on this general approach, the appellant would be entitled, if the general damages were to stand at $70,000 and past general damages were $35,000, to an additional amount for interest of $5,000.

The Master allowed the sum of $50,000 for care which the appellant's husband afforded her gratuitously during the period of her profound disability. In a schedule which was prepared for the trial, the appellant claimed an amount of $83,374.40 for this care. The appellant's formulation of her claim was based upon commercial rates provided by the domestic help organisation Dial-an-Angel. Those rates covered the period from 1 April 1984 (when the appellant was discharged from hospital) until 1 August 1989 (when she had recovered sufficiently to dispense with intensive daily assistance from her husband).

The respondents provided alternative figures from an organisation called Advanced Patient Care. However, the total of those figures was higher than the amount claimed by the appellant and so did not explain the Master's reduction. It would appear that the Master was persuaded to reduce the amount claimed by the appellant under this head by the evidence of Dr Burniston which seems to have been accepted by him. That evidence expressed reservations about the number of hours which the appellant's husband had said he spent performing services for the appellant. The greatest number of hours per day which the appellant claimed was for the 4.2 week period between | April 1984 (following discharge from hospital) and 30 April 1984. During that time the appellant claimed the need for assistance for 12 hours a day at the cost of $91 per day. Thereafter, the hours claimed dropped to 7 hours and then gradually reduced to 2 hours and finally 1 hour per day during the final period from 1 January 1989 to 31 August 1989.

The appellant's complaint was that the Master's quantification of this head of damage failed to give proper consideration to the fact that her husband had to be "on call'. In other words, it was a mistake simply to calculate the amount claimed on the actual hours of work dutifully performed. It was relevant to keep in mind the availability of the appellant's husband virtually over a 24 hour day. Such an availability had its own distinct economic value. Allowance had to be made for that value in addition to the actual hours of service, whatever they might have been. Especially during the early period immediately after the accident, the appellant's call on her husband's services was unpredictable. It could occur at any time of the day or night.

More substantially, the appellant complained that, in his approach to this head of damage, the Master fell into an error of law, at least as that law has been made clear by the recent High Court decision in Van Gervan v Fenton (1992) 66 ALJR 828 (HC). That decision was published in October 1992, three months after the Master's decision.

The passage complained of in the Master's reasons is as follows: "In approaching a claim in respect of past gratuitous services performed by a member of a plaintiff's family it must always be appreciated that the services which are provided by such organisations as Dial-an-Angel and Advanced Patient Care... are provided on a commercial basis. There is the element of profit which is involved in the cost of those professional services, as well as the element of the expenses and overheads which are associated with conducting such a commercial organisation. Accordingly, it seems to me that in calculating the amount to be included in the plaintiff's verdict in order to compensate her for the past services performed by her husband on a gratuitous basis, it is not appropriate to adopt the figures supplied by such a commercial enterprise as Dial-an-Angel. These figures can be no more than a guide for the Court."

In Van Gervan, the High Court of Australia finally inferred the often criticised decision of this Court in Kovac v Kovac [1982] 1 NSWLR 656 and various other decisions (including of the High Court) which reflected a similar philosophy. The Court made it plain that, in respect of a claim to recover an amount of damages for gratuitous services as allowed by Griffiths v Kerkemeyer (1977) 139 CLR 161, a plaintiff was entitled to recover the value of the services provided by the relative not by reference to what the relative would have earned by remaining in outside employment and had foregone but by reference to the market value of the services actually required by the plaintiff.

In their joint dissenting judgment in Van Gervan, Deane and Dawson JJ appeared to agree with this in principle (see 835 F-G) but declined to review an amount awarded according to what would have been earned by the carer in outside employment, on the basis that "... an over-generous approach by the courts to compensation based upon the need for services which are provided gratuitously may be seen to conflict with the interests of the community as a whole."

See at 836B. However, the majority judgment of Mason CJ, Toohey and McHugh JJ emphasises that:

".. the defendant has transformed the choice of the plaintiff to pay for such services or to have them done voluntarily into the need for the plaintiff to have those services performed for him or her."

See at 832. The result of this reasoning is that the strong prima facie position in respect of a Griffiths v Kerkemeyer claim is that full commercial rates are payable as damages in respect of services provided for the injured person.

The respondents defended the Master's award under this head. They called attention to the Master's acknowledgment that the figures of commercial organisations could be used as a"guide". This was a brave attempt to sustain this part of the decision. But, at least since Van Gervan, the statement that commercial rates cannot be considered because they contain a profit and overhead element must be seen as an error of law. Those rates, with those components, are now the very reference point for remaining claims under Griffiths v Kerkemeyer.

Accordingly, for the two reasons stated, this component of the Master's decision must be regarded as affected by error. It is necessary for this Court to assess it for itself (as the parties invite). In doing this, I see no reason for reducing to any substantial degree, the amount claimed in the schedule provided by the appellant. It is true that allowance should be made for the apparent impression of the Master that some of the hours claimed may have been over-stated. On the other hand, the very approach by reference exclusively to hours worked (especially in the early months) may have under-estimated the real need of the appellant to have her husband's gratuitous care constantly at hand.

Applying the above principles, I would allow $75,000 for past gratuitous care.

The Master found that the treatment for which the appellant obtained care in the United Kingdom was "readily available in Australia and was of a nature which was well known and well recognised in Australia". He also found that the appellant could equally well have obtained such treatment in Australia. Those findings were likewise based upon an acceptance of the evidence at the trial of Dr Burniston. He therefore disallowed the cost of travel to the United Kingdom to obtain the treatment. Supporting this disallowance, the respondents argued that, whether the appellant or her husband knew of the availability of the treatment, was irrelevant.

The Master allowed the actual cost of the treatment received in Sheffield, just as if it had been incurred in Australia. According to the respondents, the mere fact that the Australian practitioners misdirected themselves or were not aware of, or did not think to recommend, the treatment obtained in England was irrelevant to the obligation of the respondents to pay the airfares to that country. They pointed to the fact that the appellant actually returned to her home town of Sheffield. They urged the inherent unlikelihood that treatment in a provincial city of the United Kingdom would be significantly different from that available in Australia.

With respect, I do not agree with this analysis. The appellant was entitled to out-of-pocket expenses necessarily and reasonably incurred in the treatment of the injuries and disabilities caused by the respondents. Cf Lannoy v Koppen [1963] QWN 46; Torrent v Lancaster (1991) Aust Torts Reports 81-089. See also H Luntz, Assessment of Damages, 3rd ed, 1990, 191f. There is no question but that this is what motivated her and her husband to travel to the United Kingdom. She was in pain so prolonged and unendurable that she had contemplated suicide. It was not as if she had failed to give the Australian medical profession a fair opportunity to treat her. She had attended a great number of practitioners, 22 in all if those qualified to give evidence are counted. The nett result was that she was surviving under a cascade of drugs. In retrospect, it is little wonder that she and her husband felt the need to escape and to try, out of desperation, an entirely new start. At least on the material before this Court, the case does little credit to the medical profession. It reminds me of some of the more notorious cases in the law where hapless individuals, with good cases, have been buffeted from one port to another in the quest for justice.

In the particular circumstances of the case, I consider that the decision of the appellant (and her husband) to search out a fresh start in medical treatment in England was perfectly reasonable. As it transpires, it was also remarkably and speedily successful. It is difficult to overlook this fact in evaluating the reasonableness of the course which the plaintiff took. Logically, it may be irrelevant to the assessment of reasonableness. But necessarily the Court looks at that question with hindsight. So considered, the initiative which the appellant took certainly takes on the character of reasonable conduct.

The components of the travel costs were not specifically criticised by the respondents. The initial sortie by her husband to Sheffield to make enquiries was reasonable. It does not appear to have taken on the character of a holiday with the family. As described, it was devoted to investigation for his wife - a reflection of his own active involvement in her recovery. The appellant's travel by first class air ticket was justified by the profoundly incapacitated state she was in at the time. The return visit to England was expressly required by Dr Jakubowski who said it was "almost essential" and "imperative". By taking these steps the appellant mitigated her loss. She got back to work. This warranted the Master's substantial reduction on her loss of economic capacity. Had the initiative not been taken and had the Australian regime of treatment continued, it seems very likely to me that the appellant would have come up for assessment of damages as a case for permanent and total disablement. In that sense, the expenditure of the costs of travel to the United Kingdom was more than warranted by the savings effected in the treatment secured. I would allow the appellant the whole of the out-of-pocket expenses claimed under this head.

In her statement of particulars the appellant made a claim for future medical and associated expenses connected with her need for continuing physiotherapy. In his decision, the Master allowed the appellant $2,000 for the future cost of medication. However, in this, he failed to make allowance for the probable cost of physiotherapy in the future.

In his evidence, Dr Jakubowski testified that the appellant would require physiotherapy which he recommended should be performed for a couple of weeks each six months, continuing indefinitely. There was no evidence to suggest that such treatment was inappropriate. On the contrary, the great success secured by Dr Jakubowski makes it apparently reasonable that his regime should be continued.

The appellant gave evidence as to the nature and extent of the physiotherapy treatment which she was undertaking. Before she left Australia following the judgment, she was receiving treatment from a physiotherapist at Kogarah which she gave evidence cost approximately $28 per visit. She found that this treatment kept her pain under control.

In these circumstances the Master ought to have made an allowance, in addition to that provided, for the cost of physiotherapy as recommended by Dr Jakubowski. That allowance should have been of the order of $840 per annum, or $16 per week.

At the time of the judgment of the Master, the appellant was 48 years of age. Using 1982 life tables she had a life expectancy of 32 years. Discounted on the 3% tables for that period, the sum produced is $17,276. It was this sum which the appellant claimed.

She also asserted that she might need further surgery to close a nasal septal perforation caused in the accident. She complained of clotting in her nose which caused restriction of breathing. She said that she did not intend to have an operation for this condition "at the moment" but that it was "quite possible" that she might undergo such an operation in the future. The decision of the High Court in Malec v J C Hutton Pty Ltd (1990) 64 ALJR 316 (HC) at 318 requires that a person in the position of the appellant should have provision made, to the extent that it is proper, for future possible expenses - even where it cannot be said that it is likely, still less certain, that she will incur them.

The respondents claimed that the "cushion" of $2,000 allowed by the Master could be increased to $5,000 to cover the appellant against these future possible costs of treatment. In my view the "cushion" of $2,000 was not a cushion at all. To allow for the possibility of a future nasal operation and the likelihood of future physiotherapy expenses I consider that it is appropriate to allow total sum of $15,000 for future physiotherapy and medical costs.

As previously stated the Master allowed $70,000 for general damages. Having regard to the great pain and suffering of the appellant and her endurance until she secured relief in England, the appellant contended that the sum allowed was inadequate. The respondents pointed to the appellant's virtual recovery to full-time work. But this was achieved only for a relatively short period. The appellant continues to have pain although she now has it under control. Because so many components of the appellant's damages have, by the earlier determinations, to be recalculated, it is appropriate, I think, that I should approach this head of damages uncontrolled by the Master's determination. If that determination were the only subject of complaint, it is possible that I would have concluded that it was within the range of a sound discretionary judgment

such that, conformably with authority, this Court could not interfere. See Moran v McMahon (1985) 3 NSWLR 700 (CA), 723. But because I am released from this fetter by the established obligation to reassess the appellant's damages for myself, I believe that the proper provision for general damages in this particularly painful chronicle of disabilities is $80,000. I would apportion a portion more than half of the general damages in this case to the past, ie $50,000. Upon that sum, to the date of the trial, the interest should be $7,000.

I come finally to the most hotly contested issue in the appeal. I refer to the claim made by the appellant for an allowance to be made for major dental treatment not proved at the trial. The respondents resisted this claim. They did so on the footing that this amounted to a fresh head of claim. Not having been placed before the Master, it should be excluded now. This Court should not permit an appeal by way of rehearing to become enlarged into an effective new trial with entirely fresh heads of claim being offered which were not advanced before the primary decision-maker. The Court was reminded of the high public interest in the finality of litigation. It was also reminded of the stringent requirements of its own authority. See eg Radnedge v Government Insurance Office of New South Wales (1987) 9 NSWLR 235 (CA).

The claim came about in this way. After the Master's decision, the appellant contacted her solicitor. She stated that a specialist in the United Kingdom had determined that she was suffering from temporomandibular dysfunction syndrome (TDS). This had been diagnosed as the cause of the pain which had previously been thought to be related to the cervical spine and neck-or just the consequence of the generalised pain and discomfort the appellant had suffered since the injury, particularly in her face and head. Although immediately following the injury the appellant complained to various practitioners of bilateral jaw pain, and although such pain was attributed by her to the motor vehicle accident, none of the numerous medical practitioners and dentists who saw her diagnosed TDS.

In support of the application to introduce evidence on this point in the appeal, the appellant's solicitor pointed out that the medical evidence given at the trial showed that the appellant had been examined by 38 medical practitioners (including 7 on behalf of the respondents). No explicit diagnosis of TDS had been made until after the decision under appeal was given.

The Court decided to take the step of hearing the oral evidence and receiving the medical reports on this issue whilst reserving its decision on whether the evidence should be admitted. In short, the evidence for the appellant consisted of the written reports and oral testimony of Professor John Norman, who has both medical and dental qualifications and is a Professor of Sydney University. The Court also received the report of Dr P McAndrew. He is a consulting oral surgeon in England who examined the appellant in England at the request of the respondents.

Professor Norman, in a most thorough examination of the case, had no doubt that the appellant is suffering from TDS. Indeed, he said that the condition would have been plainly obvious to any reasonably competent medical or dental practitioner and this despite the fact that it was clearly missed by so many. He estimated that the appellant would need jaw joint surgery to remedy this problem in the future. On the scale of | to 10, he estimated the probability of that need as:

He provided a costing of the expense of such surgery based upon Australian costs. To get at the joint for jaw surgery it would be necessary to replace some dental bridgework earlier performed on the appellant. The total cost of the mesicoplasty (jaw joint surgery) and the restorative dentistry to replace the bridgework was estimated at $14,789. Professor Norman visits England regularly. It was his estimate that the cost of such treatment in Sheffield would, if anything, be slightly higher than in Australia.

Dr McAndrew, on the other hand, accepted that the severe blow to the central part of the appellant's face, including the chin point, was the obvious reason for the "initiation of the stability (sic) of the left temporomandibular joint in the first place". However, he noted the appellant's statement that she was feeling "very much better" and that there was "far more movement across the jaw joint and little or no pain". He rejected the notion that her face was asymmetrical by reason of disturbance of the jaw joint. Having regard to "aggressive treatment" which she had already undergone from her dentist in England he did not consider that further investigations or surgery were required or necessary.

Professor Norman, who is an expert in TDS, disputed these conclusions. He adhered to his view that there was a high possibility, rising to a probability, that in due course the appellant would require surgery for the condition of TDS. As previously stated, if there is a realistic possibility of such further treatment and cost, the appellant is entitled to recover damages in respect of it. The Court assesses the degree of probability that an event might occur and adjusts its award of damages to reflect the degree of probability. See Malec (above), 318.

So far as general damages in respect of the pain and suffering already undergone are concerned, I do not believe that it would be appropriate to add a fresh component of damages for this condition. The appellant had already made her complaints to the court. In order to give her general damages it was not essential for the court to track down the actual sources of the pain or to diagnose it as differentially occasioned by TDS as distinct from head, neck or facial injuries. On the other hand, the appellant would certainly be entitled, on a primary assessment, to a substantial allowance (say $10,000) for the risk that she will need and will undergo the dental treatment explained by Professor Norman for the condition of TDS which he has diagnosed.

Additionally, it would be appropriate to allow the appellant general damages for the pain and suffering, discomfort, dislocation and inconvenience of the surgery in the future. Dental and jaw surgery are notoriously painful. In a primary assessment I believe the appellant would be entitled to recover $5,000 under this head, making a total recovery on the fresh evidence of $15,000.

But should the Court permit the "fresh evidence" to be admitted? In my view it should. The provisions governing this Court in regard to "fresh evidence" of matters arising after the trial appear in s75A(7), (9) and (10) of the Supreme Court Act 1970. As I remarked in Radnedge at 240, s75A(7) by its terms gives a plenary discretion to this Court to receive evidence of matters occurring after trial. Nevertheless, the majority in Radnedge held that admission of such evidence should only occur on very special grounds. Those grounds were discussed by Gleeson CJ (with whom Meagher and Handley JJA agreed) in Doherty v Liverpool District Hospital (1991) 22 NSWLR 284 (CA). The basic requirement is that the evidence should be relevant. Beyond that, admission is a "matter of discretion and degree" based, on the one hand, on fairness in the assessment of the plaintiff's damages and, on the other, on the general public interest in the finality of litigation. Referring to the comments of Lord

Wilberforce in Mulholland v Mitchell [1971] AC 666 (HL), it was noted in Doherty that evidence might be accepted if some basic assumptions, common to both sides, have clearly been falsified by subsequent events; or if, to refuse the evidence, would affront common sense or the sense of justice.

Where, as here, the failure to turn up this evidence at an earlier stage was not the fault of the appellant or her advisers but simply an apparent error of diagnosis which has now been corrected, I see no reason of policy or principle that requires the Court to ignore the facts as they are now proved. Nor do I consider that the authority of the Court stands in the way of receipt of this evidence. It involves no retrial of the entire case. Unlike the circumstances in Doherty, in which the contingency of the death of the plaintiff was realised and taken into account at trial (and so evidence of actual death was not admitted on appeal) in this case there was no diagnosis of the condition before the completion of the trial. In these circumstances the evidence of TDS should be admitted.

In any case, the Court is obliged to perform the task of reassessment. That is a task assigned to the Court by legislation. It is required by the decisions of the Master on several quite separate grounds of appeal, as set out above. Indeed, upon at least two grounds, the respondents agreed that an error of assessment had occurred. Hence, by inference, the respondents were forced to concede that the damages had to be reassessed. It is therefore not strictly necessary to consider whether, had the evidence of Professor Norman stood alone, the Court would have admitted it as "fresh evidence" in the circumstances. Even if this Court were to hold that the evidence of TDS was fresh evidence which should not be admitted as a ground for interference with the Master's decision, it may be tendered, as it was, in support of the Court's independent function of reassessment. In performing that function it is appropriate, at least in the circumstances of this case, to receive the evidence of the diagnosis of TDS made since the trial.

In Warr v Santos [1973] 1 NSWLR 432 (CA), 437 Moffitt A-P (with whom Hutley JA agreed on this point at 442) held that certain fresh evidence, although it would not have been admitted had it "stood alone as the ground on which interference with the decision at first instance was sought", was admissible as it allowed for a fuller and more accurate reassessment of the damages that should be allowed. The distinction involved between receiving fresh evidence in aid of ordering a new trial and receiving it to aid the Court in its function of reassessment is supported by the decision of this Court in Tamas v Streimer, Court of Appeal, unreported, 10 July 1981.

In the result, I believe that the appellant's damages should be increased under this head by $15,000.

The duty of the Court is to perform a reassessment, error having been shown in various components of the Master's primary assessment. Several of the remaining components were not contested. Others were taken by both sides as an appropriate assessment and no submissions were addressed to them. Still others were taken as basically correct but with the need for additions as now determined. However, to ensure that the final figure is that of the Court, and not merely an adjusted figure derived from the Master's judgment, I have attempted to reconsider the various components of the judgment and I have recalculated the resulting judgment in its entirety. So considered, I believe that the result is appropriate and just and a true reflection of the appellant's losses and damage.

The consequence of the foregoing is that the following recalculation should be substituted for the assessment made by the Master:

Past economic loss 101,818.40 Interest on past economic loss 22,957.09 Past out-of-pocket expenses 89,851.64 Past gratuitous care 75,000.00 Future loss of earning capacity 60,000.00 Future out-of-pocket expenses 15,000.00 General damages 80,000.00 Interest on past general damages of $50,000 7,000.00 Fox v Wood component 6,257.00 Possible future dental costs and damages 15,000.00 Total Judgment 472,984.13

It is appropriate to close this judgment with an expression of appreciation to counsel on both sides whose oral and written submissions were of a very high order.

Set aside the judgment entered pursuant to the decision of the Master;

In lieu thereof, order that the defendants pay to the plaintiff the sum of $472,984.13;

Confirm the order that the defendants pay the costs of the plaintiff of the trial;

Order the respondents to pay the appellant's costs of the appeal but to have, if otherwise so qualified in respect thereof, a certificate under the Suitors' Fund Act 1951.

Priestley JA I agree with the President in his identification of significant errors made in the court below. As a result it is in my opinion necessary for this court to reassess the appellant's damages. For this purpose I think it appropriate for the further evidence sought to be introduced by the appellant to be available to the court. I agree with the reason for admitting it relied on by the President in the paragraph in his reasons in which he refers to Warr v Santos [1973] 1 NSWLR 432 and Tamas v Streinder (Court of Appeal, unreported, 10 July 1981). It may be that the President in earlier paragraphs puts the admissibility of the further evidence on wider grounds. I do not consider it necessary, for purposes of the present case, to express any opinion on the questions raised by those wider grounds.

Talso agree with the way the President has approached the various heads of the appellant's damage, and with the orders he proposes.

Meagher JA I have read in draft the judgment of Kirby P, and with some reluctance agree with it. The part of the draft judgment which has given me worry is the part which deals with the admission of the "fresh evidence".

The so called "fresh evidence", namely the existence of temporomandibular dysfunction syndrome, should have been plainly obvious to any reasonably competent doctor or dentist between injury and trial. This was made plain by

Professor Norman. In normal circumstances, that should require a refusal of any attempt to rely on such evidence after trial. However, as this Court in the present case is obliged in any event to re-assess the plaintiff's damages, there is something to be said for the view that it should not embark on that task with one eye closed.

Appeal allowed;
In lieu thereof, order that the defendants pay to the plaintiff the sum of

Set aside the judgment entered pursuant to the decision of the Master;

Confirm the order that the defendants pay the costs of the plaintiff of the trial; and

Order the respondents to pay the appellant's costs of the appeal but to have, if otherwise so qualified in respect thereof, a certificate under the

Counsel for the Appellant: P Semmler QC / C Whitelaw

See Social Security Act 1991(Cth)

At a glance

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Judgment (112 paragraphs)

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Cases Cited (11)

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