CALDWELL v CALDWELL

His Honour Judge Ducker found a verdict of $131,145.25 for the plaintiff. After making a deduction of out of pocket expenses of $8,862.25, the damages awarded were made up of an amount of $88,800 for non-economic loss, (his Honour regarded the plaintiff as 40 per cent of a most extreme case) $30,000 for loss of future earning capacity, $3,000 for future medical expenses, the amount of out of pocket expenses to which I have referred, and travelling expenses of $483. The appellant challenges the amounts allowed for non-economic loss, future loss of earning capacity and future medical treatment expenses on the basis that the amounts awarded were excessive.

As I have said the plaintiff was almost nine at the date of accident. He suffered fractures of the left radius and ulna, the right tibia and fibula and of the second and third metacarpal heads of the right hand. He also suffered multiple lacerations and permanent scarring behind his right ear, which his Honour said was not particularly serious and at the present time is hidden by a full head of hair.

His Honour was satisfied that the effects of the accident upon the plaintiff were considerable. The plaintiff was first taken to Glen Innes Hospital and later transferred to Camperdown Hospital and later again to the Tamworth Hospital. He was totally hospitalised for fourteen days. His fractures were manipulated and placed in plaster. The fracture of his right leg had to be re-manipulated on two separate occasions. In essence he suffered what his Honour described as, very unpleasant procedures.

The leg fractures took three months in plaster to unite and the forearm fractures took six weeks in plaster. For a period of about three weeks he was confined to a wheelchair and thereafter was on crutches for about three weeks. He lost a term from school but appeared to be capable of making this up without much problem.

His Honour found that since his injuries he had lost a fair amount of interest in sporting activities and felt he was slower at running than previously. His Honour found that he had become reluctant to involve himself in the sort of boyish activities that he had engaged in before the accident. While the very

unpleasant injuries to his arm have largely resolved, although he complains if he is knocked or bumped at the fracture site, in orthopaedic terms the fracture of his right leg has been the source of major problems.

His Honour was satisfied there was a probability, given the nature of the injury, that degenerative changes would occur at two possible sites, the knee and the ankle region. His Honour was satisfied that the plaintiff had some, though not great, residual disability in his right leg. These findings were supported by Dr Bentivoglio's report of 23 January 1995. In that report Dr Bentivoglio, speaking of the right lower limb, said the plaintiff had:

"minor rotational deformity present in his right lower limb with approximately 10% less external rotation in his right tibia than that was displayed in his left tibia. He had a full range of ankle, knee and subtalar joint movement present in his right lower limb."

Regarding the nasty fracture he had sustained, Dr Bentivoglio said:

"Fortunately, the fractures have united uneventfully but the most recent x-rays taken of his right lower limb in July 1993 show that has considerable angular deformity present at the fracture site and evidence of quite marked leg length discrepancy in his right shin region. As a result of the overgrowth caused by the fracture he has regained his leg length discrepancy but I am doubtful that he will be able to remodel out completely the angular deformity at the fracture site. This means that he is somewhat prone to developing degenerative osteoarthrosis present in his knee and ankle regions in the distant future. It may not however occur".

His Honour said that he did not the expect the degenerative changes for quite some years. He said:

"Tt will of course be necessary to bear in mind that it is the long term that is involved when considering questions of loss of earning capacity. It would be unlikely to interfere with him in the short term, although, I am satisfied that he would probably be precluded from occupations requiring high physical fitness such as the police force. Likewise, he would quite likely suffer some impediment were he to try to join the armed services, or at least certain branches of them."

The trial Judge found the plaintiff to be a reasonable student with no apparent intellectual impairment. He said:

"He appears to be on the cusp of white and blue collar occupations."

He thought there was a very real possibility that he "might well, in future times, wish to become a tradesman, which would involve, generally speaking, more physical activity than most white collar occupations: certainly more stress on his leg."

His Honour was satisfied that the plaintiff had suffered a profound reaction to the death of his sister. His Honour acknowledged that the picture was complicated by the fact that not long before the accident his parents had separated and there was some acrimony between them. It was complicated by his mother's imprisonment, as a result of the accident, with the consequent depravation of her company and the ignominy and embarrassment that the plaintiff could be expected to suffer by her imprisonment.

It was further complicated by custodial proceedings which left the plaintiff living with his maternal grandparents. However, he found that the plaintiff had been largely shielded from the effects of this trauma. Even so, his Honour found that by far the most profound influence upon the boy's undoubted psychological problems was that which arose as a result of the death of his sister in the accident.

URJ CALDWELL v CALDWELL (by his next friend CALDWELL) (Sheller JA) 3

The plaintiff's emotional reaction went far beyond mere normal grief and his Honour said that it was not argued to the contrary.

He accepted the findings of a report of a psychologist, Miss Barbara Walsh, of 5 April 1995. Miss Walsh had seen the plaintiff while he was an inpatient at Tamworth Base Hospital on 13 May 1993 and then on two occasions as an outpatient on 20 and 27 May 1993. On 24 March 1995 she reviewed him with regard to the psychological sequelae of the accident and separation from his mother, who was of course, in prison. Miss Walsh opined that:

"The May 1993 picture for Adam was that of a 9 year old boy with Acute Post Traumatic Stress Disorder and with a distorted and complicated grieving process before him."

"When I reviewed Adam on 29 March 1995 it was evident that the Post Traumatic Stress Disorder was now present in a chronic but truncated form. Hypervigilance was still a problem, manifesting itself in being highly cautious/avoidant of normal boyhood physical activities. Nightmares are now occasional but still contain symbolic material from the accidents, especially 'purple' flashing lights."

"Tt is common for children who have been bereaved and who have experienced serious psychological trauma in an accident to be beset by future problems. These include regrieving phenomena which usually recur at later stages of the child's development. The repressed parts of the Post Traumatic Stress Disorder are likely to resurface at later critical times in the person's life. Panic disorders, depressive illness and alcohol abuse are more frequently seen in people who have been bereaved in childhood".

"In summary Adam shows both overt and subtle signs of psychological impairment resulting from the accident which occurred on 28 April 1993. He has suffered two significant losses in the death of his younger sister and the incarceration of his mother. The psychological sequelae of the accident trauma and the bereavement predispose him for problematic reactions at critical junctures later in his life. There is considerable potential for the breakdown of his relationship with his mother as he matures. Adam's normal development tasks are likely to be complicated and impeded by these factors. Appropriate treatment will serve to reduce the severity of the predicted outcome. Treatment would not be expected to cure Adam's condition."

The trial Judge was satisfied that the vast bulk of the plaintiffs problems arose from his involvement in this accident and the death of his sister. He said:

"T am satisfied that it is likely that there will be ongoing difficulties as he passes through various stages of his childhood and adolescence. I suspect that with the other traumas that adolescence involves that his problems may well be exacerbated. I accept that he has already exhibited signs of depression and may indeed have still a great deal of problem in coming to terms with the death of his sister as the years go by. I noted from some of the material that they quarrelled, as all siblings do. None the less, I am satisfied that he had a profound reaction to her loss and that there was deep attachment between them. I was impressed by the evidence of the boy himself today as to that.

I believe that this is a matter that, given his particular make up as disclosed in the reports, is going to continue to affect him. Indeed, in the report of Doctor Moore it is acknowledged that there are already problems and that some of those

problems are likely to be ongoing. I think that the likelihood is that he will require psychological, possibly psychiatric, treatment in future arising from this accident and that it may be necessary over the years, to the extent that some allowance really ought to be made for that."

As I have said, on the basis of this material, his Honour assessed non-economic loss at 40 per cent of a most extreme case.

Of the loss of future earning capacity, his Honour said that he did not believe this should be of great magnitude but he accepted that from time to time there may be some employment that the plaintiff might not be able to follow and that he might miss some work whilst receiving certain forms of treatment.

Absences due to the need for that treatment could antagonise some employers and that could have an effect upon him. He said:

"T would think that, however, by and large he will not be greatly affected, but I do believe he is entitled to some allowance that recognises the reduction in his earning capacity and I allow him under that head the sum of $30,000."

The appellant submitted that the amount allowed for non-economic loss showed a want of necessary proportionality. It was said that his Honour had failed to take account of the resilience of youth. His Honour's view about the degenerative change was based upon Dr Bentivoglio's report. It was submitted, on behalf of the appellant, that his Honour had misread that report and treated it as an opinion of the probability of future degenerative change, rather than possibility, which it was asserted Dr Bentivoglio expressed. I do not agree that this was a proper interpretation of the passage from Dr Bentivoglio's report. It is clear that Dr Bentivoglio was of the view that the plaintiff was prone to such a condition, though he acknowledged that it might not occur.

The appellant referred to a passage in the plaintiffs evidence, in which, when questioned about his leg and his ability to walk, he said that it was getting better. His Honour saw the plaintiff in the witness box. The appellant acknowledged that he was a young boy who tended to understate his condition. It seems to me that this is a poor answer to the expert evidence of Dr Bentivoglio and the quite proper reliance that his Honour, having seen the plaintiff, put upon it.

The appellant, faced with his Honour's reliance upon the report of Miss Walsh, submitted that that report ascribed the psychological condition from which the plaintiff suffered equally to his mother's incarceration and to the effects of the accident. I do not so read it. Clearly his Honour, having seen the plaintiff, heard the evidence and read the reports that were put before him, took the view, which T have read out, that the vast bulk of his problems arose from his involvement in the accident. With the greatest respect, I would have thought that this is no more nor less than the application by his Honour of commonsense.

The appellant submitted that it was not open to his Honour to place overwhelming weight on the grief that this young boy suffered from the loss of his young sister. I do not agree with that submission. In my opinion, no ground whatever has been shown for interfering with his Honour's assessment of non-economic loss.

I should perhaps mention that some point was made which suggested that Miss Walsh's evidence was in some way diminished in weight, or value, because it happened that two psychiatrists took a somewhat different view. I do not accept that submission.

Challenge was also made to the amount awarded for economic loss and stress was placed upon the distant future at which his Honour saw the possibilities of degenerative change. However, the submission, which is in part mathematical

URJ CALDWELL v CALDWELL (by his next friend CALDWELL) (Sheller JA) 5

and designed to show the effect of getting $30,000 today for what may not be spent for some 30 or 40 years, entirely overlooks the evidence about the psychological condition of the plaintiff.

I think one needs do no more than read the passages that I have quoted from Miss Walsh's report to understand the reasons why his Honour, in my opinion, quite properly, took the view that he did about future economic loss. This basis of appeal also fails.

This brings me finally to the matter of $3,000 for future medical expenses. That amount also was challenged but again, quite clearly, Miss Walsh foresaw that future treatment would be likely to be needed. No ground, in my opinion, has been shown for disturbing this part of the verdict.

Accordingly, in my opinion, the appeal fails and should be dismissed with costs.

Cole JA I agree. Sheller JA The order of the Court is that the appeal is dismissed with costs.

Counsel for the appellant: C R R Hoeben SC Solicitors for the appellant: G E Kazar