GOODSELL v MURPHY

COUNSEL : Appellant: F McAlary QC Respondent: M Aldridge SC/A Healey SOLICITORS : Appellant: Abbott Tout Respondent: Bryden's Law Office CATCHWORDS : NEGLIGENCE - motor accident - causation - whether negligence caused relapse into heroin addiction - plaintiff had a history of heroin dependency for some years prior to the accident - whether evidence capable of establishing causation. - QUANTUM - whether trial judge adequately took into account the plaintiff's predisposition to heroin abuse - prospects for the future - economic loss - diminution of earning capacity - s 70A Motor Accident's Act 1988. - (ND) LEGISLATION CITED : Motor Accidents Act 1988, s 70A Chappel v Hart (1998) 195 CLR 232 EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 Graham v Baker (1961) 106 CLR 340 Grey v Simpson (unreported, NSWCA, 3 April 1978) CASES CITED: Husher v Husher (1999) 197 CLR 138 Medlin v State Government Insurance Commission (1995) 182 CLR 1 Tubemakers of Australia v Fernandez (1976) 50 ALJR 720 Wilson v Peisley (1975) 7 ALR 571 Yates v Jones (1990) ATR 81-009 DECISION : See pars 60, 61

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40713/2001

MASON P BEAZLEY JA

Peter John GOODSELL v Lynette Sharon MURPHY JUDGMENT 1 MASON P: The respondent suffered severe whiplash and other injury through the admitted negligence of the appellant in a motor vehicle accident on 9 July 1996. Following a trial in the District Court in August 2000 she recovered a verdict of $238,616 made up as follows: $99,500 for non-economic loss, on the basis of 35% of a most extreme case $13,116 for out of pocket expenses for medical treatment past and future $126,000 for economic loss $238,616 2 This appeal challenges the first and third components of the award as determined by Judge Backhouse QC in her reasons for judgment published on 30 July 2001. Apart from a challenge to one finding on causation, the attack concentrates upon the conclusions drawn from primary facts established in the judgment and not now in dispute. 3 The respondent was born on 16 October 1957. She was thus 38 at the time of the accident and 42 at the time of hearing. 4 The accident occurred when the car in which the respondent was the appellant's passenger turned right, across the path of an oncoming truck. The force of the smash sheared off the whole front of the car. The respondent covered her face because she saw the truck coming. She hit her head on the dashboard and broke her teeth. She was unable to get out of the car and feared for a time that it might catch alight. 5 She woke up in hospital with her neck in a brace, and with a sore head and right knee. Her medical treatment included morphine. She left hospital two days later, but in considerable pain. She could not lift up her arms and was in pain in the mid back region between the shoulder blades. She sat on her couch for three days and needed assistance even to go to the toilet. 6 Before the accident the respondent had a history of heroin addiction. Within days of discharge from hospital she arranged for a friend to buy heroin for her from Cabramatta. From then until not long before the hearing she was never free from heroin for more than 29 hours. According to the respondent, whose evidence was generally accepted by the trial judge, the heroin caused symptoms such as severe vomiting, diarrhoea, restlessness, sleeplessness, hyperventilation and profuse sweating. 7 The accident was held to be a contributing factor to her relapse into addiction. This is the causation finding that is challenged in the appeal. 8 The presence of the heroin-induced symptoms heightened the difficulty of separating the physical and psychological sequelae of the accident, at least to the limited extent that the post-accident heroin addiction could not be laid at the appellant's door. 9 With this caveat I shall endeavour to summarise the findings relevant to the direct physical consequences of the accident. The task is at times difficult having regard to the discursive form of the judgment and to uncertainty whether evidence or submissions are being summarised or accepted. 10 There was significant ongoing neck and back pain, together with pain in the right knee. These caused quite severe migrainous headaches and other discomfort. There was trouble turning the neck to the right. A CAT scan done in May 1997 showed a mild broad-based C4/5 disc protrusion with degenerative change. The trial judge accepted the respondent's evidence that she had no neck or back problems of a physical nature before the accident and that she has complained ever after about them. Her Honour concluded that there was some degenerative change in the cervical spine that was aggravated and that a disc rupture was superimposed on it in the accident. 11 The right knee gives way on occasions. The neck pain improved over time between the accident and trial, but there is continuing restriction in turning to the right because of pain. The respondent suffered back headaches of a migrainous type since the accident and these were continuing. There are also bouts of giddiness or dizziness. 12 I have summarised the findings at Red 47-9. Because of the challenge to the award for non-economic loss I should also indicate that the respondent's evidence of the continuing impact of the accident was summarised in the following terms by Judge Backhouse (Ref 20F-Q): At the time of the hearing she said she cannot put her head down to read anything, she gets a burning sensation in her neck. She can't turn her head to the right. She is in constant pain. Sometimes she does not get out of bed until 2pm in the afternoon. Her neck is never absolutely pain free. Just moving her head like reading or sitting now she feels like she has got to put her hand under her chin and hold her head up. It feels wobbly. She wears a neck brace at home sometimes. Over the past few months, to her the pain in her neck was worse because she was not on heroin. The pain is right up her neck on both sides, up the centre. It goes to her head. She gets headaches but the disc on the top there swells up, it gets inflamed and it gets big, the one at the tip she indicated right at the base of the neck. These days she can't lift her arms, they feel like lead weights. When she is in bad pain she gets a sweat patch there. She can't bend properly, she can't clean the house properly. She has got to lean on her arms all the time to take the pressure off her back. Again her mid back region is never absolutely pain free. Her neck is worse than her back. The right knee clicks when she goes up stairs, it gives out on her when she walks. If she crouches down it locks. She had had a few stumbles because of it, a few falls. It doesn't really ache, it just clicks.

I infer that her Honour accepted this evidence. 13 As to the psychological effects of the accident, the findings at Red 47-9 are to the effect that these were sleep disturbance, flashbacks reliving the accident, panic attacks leading to abandonment of public transport. Her Honour accepted Dr Strum's opinion that the symptoms indicated post-traumatic stress disorder (DSM-IV-309.81) (see Red 47T, 33). 14 The written submissions of the respondent demonstrate that these findings were well open to her Honour on the evidence. In the upshot the appellant did not challenge them. 15 As I read the discussion at Red 47-9 the trial judge did not accept the submission that fits or seizures were epileptic or accident-caused. The furthest she appears to have gone is to accept the respondent's evidence of giddiness or dizziness (see also Red 36T). There is a clear finding that the trial judge was not satisfied that the respondent suffered any head injury or brain damage in the accident (Red 49H). 16 The respondent completed her schooling in year 9 in 1972 without obtaining the School Certificate. Between 1972 and 1975 she worked in various jobs as a factory machinist, petrol station attendant and process worker. She was then out of the paid workforce for a period as she cared for her two young children. It is not however suggested in the evidence that this role was the reason for her avoiding virtually any paid work for the entire period between 1975 and 1996. 17 In November 1989 one of her children drowned when he fell into a unfenced pool at premises she rented. She was then living alone. The loss of her child has had a severe and continuing impact. Obviously the appellant took his victim as he found her, but he of course is not responsible for suffering or disabilities stemming from this sad loss. 18 About five to six weeks after the child's death the respondent started using heroin. The next year (1990) she attempted suicide. Her psychiatrist put her on methadone. She got off methadone in November 1990 and at that stage she was able to remain away from it. 19 In November 1991 she fell pregnant but the pregnancy was ectopic, resulting in severe pain and consequential removal of the fallopian tube. 20 Between about December 1991 and the accident in July 1996 the respondent was again involved in heroin from time to time - she estimated the aggregate was six months. She was not using heroin at the time of the accident and had been off it for about nine months. Nevertheless, Judge Backhouse held that her use of heroin up to the period six months before the accident was greater than the respondent wished to portray to the court (Red 45N). 21 The respondent spent 12 months in gaol in 1994-95 following conviction for knowingly taking part in drug dealing.

The causation issue 22 The appellant argues that there was no evidence justifying the conclusion that the accident materially contributed to the respondent's relapse into heroin dependency. 23 In my view, there was evidence capable of satisfying the tribunal of fact that the accident contributed materially to the plaintiff resuming her drug habit. 24 First, there was the respondent's evidence itself, which the judge accepted. In September 1996 the respondent also gave a history to Dr Dyball of "long term drug abuse well predating the motor vehicle accident and going up to it" (Red 25A). The respondent was cross-examined about this evidence (see Red 25-6). Dr Dyball was not. The respondent had a sorry history of heroin dependency from December 1989, shortly after her son's drowning, down to February 1996, five months before the accident. She was given morphine in hospital and she returned to her drug dependency within days. She said that the immediate pain stemming from the accident led her to ask a friend to buy heroin for her three days after her discharge from hospital. She also said that she found it harder to get off heroin post accident than before it: this evidence was specifically accepted by Judge Backhouse (Red 46). I am inclined, to think that this evidence alone justified the conclusion as to causal linkage. It does not depend upon judicial notice about heroin addiction, but simply upon acceptance of the evidence of the respondent as someone not lacking in qualifications to point to the linkage. 25 Secondly, there was the evidence of Dr Fine as to the nature of drug addiction and his statement that "about 90% of treated heroin dependents relapse within one year" (Blue 72), coupled with his acceptance of the fact that the plaintiff was a true addict (69-70). See also Red 26K, 36T. 26 Thirdly, there is the opinion of Dr Lorentz that it was possible, on reviewing the plaintiff's history, that she would not have gone back to the heroin habit had it not been for the accident (Blue 32). Dr Lorentz is a consultant physician neurologist. Taken with the other evidence, this opinion was capable of establishing causation on the balance of probabilities (EMI (Australia) Ltd v Bes [1970] 2 NSWR 238; Tubemakers of Australia v Fernandez (1976) 50 ALJR 720). 27 The appellant relied upon Yates v Jones (1990) ATR ¶81-009. However, the facts of Yates are distinguishable because there the Court (by majority) was not satisfied that the plaintiff was in severe pain and because she turned to heroin for the first time after the accident and at the suggestion of a acquaintance. Here, on the other hand, the plaintiff already knew about heroin and its "apparent palliative attraction" (cf Grey v Simpson NSWCA, unreported, 3 April 1978); she had a history indicating addiction; she was in considerable pain and discomfort following her discharge from hospital (where she had been treated with morphine); and she requested her friend to procure heroin for her. 28 The argument in this appeal was confined to the questions whether the finding of causation was open and whether the conclusion was properly drawn by the judge. The plaintiff's pre-accident history of heroin addiction shows why no issue of voluntariness "breaking" a chain of causation arose. 29 I would therefore reject the challenge based upon absence of evidence capable of supporting the finding of causation.

The respondent's predisposition to heroin abuse 30 Alternatively, the appellant contends that primary judge erred in failing to take account of the respondent's pre-accident vulnerability and predisposition. Here the appellant is on stronger ground. 31 In Chappel v Hart (1998) 195 CLR 232 at 241 Gaudron J said: It is well settled that an award of damages must take account of the probability that some or all of the damage suffered by the plaintiff would have occurred in any event.

32 In Wilson v Peisley (1975) 7 ALR 571 at 574 Barwick CJ said: There is no reason to think that the judge failed fully to appreciate the respondent's condition and prospects. It is clear to my mind from my perusal of the trial judge's carefully expressed reasons for judgment - described in the Supreme Court as "this careful and complete judgment" - that whilst he realized that the respondent's pre-existing condition afforded no answer in point of liability to the appellant, yet that condition and its propensity, being something not caused by the appellant and pregnant of psychological damage to her in the future, in the ordinary course of her life, must be placed in the scales when deciding what sum should be awarded for what the appellant had caused. The trauma of the accident for which the appellant was responsible no doubt made a present reality of that which was ever a real possibility. Thus, whilst the appellant must pay for bringing out the condition, what he must pay must, in my opinion, justly reflect the fact that that condition was not merely latent in the respondent but that events, not of an unusual or unlikely kind, could and might in the ordinary course of life have evoked that condition had not the appellant's negligence intervened. The judge included this possibility in the vicissitudes of life which he was bound to bring to account in connection with the assessment of economic loss. In my opinion he was not in error in so doing. 33 It is very unclear whether the primary judge gave effect to these principles. Her reasoning arguably proceeds on the basis that the appellant is wholly responsible for the respondent's post-accident condition, without allowance for her pre-accident disposition to depression (Red 33, summarising Dr Strum's evidence) and heroin abuse (with its harmful sequelae). At the very least, the ultimate findings leave these significant matters to uncertain inference. The fact that the conventional 15% for vicissitudes was used heightens my fear that the respondent's predisposition was overlooked in the ultimate determination in relation to future economic loss. 34 With this background I turn to the specific challenges to the judgment below.

Economic loss 35 There is little doubt that the accident and the return to heavy drug abuse which followed it (whether or not causally related to it) meant that the respondent has become effectively unemployable. This was the respondent's submission. The appellant contends otherwise in one variant of his submissions, seeing more long term hope in the results of a detox program in March 2000 than the respondent does. It was common ground that she did not work during the period July 1996 to July 2001, with one limited exception to which reference is later made. The trial judge summarised her evidence on this matter in the following terms (Red 21G-K): Putting to one side any involvement with drugs and assuming she had the physical problems that she had told the court today, she could not do the work she used to do in younger years as a machinist or process worker because she can't sit or stand too long. Her own view so far as work is concerned for the future, she knows she won't work again. Standing for lengthy periods physically hurts her, it's her neck. If she has to turn her head too much or lean it forward. (sic)

36 During the couple of years after the accident the heroin gave initial but later inadequate relief from the neck pain (Red 19Q). The respondent said that until shortly before the hearing she found herself unable to do anything about remaining away from heroin, despite its own adverse effects upon her health and wellbeing (Red 19F). 37 In March 2000 she tried out a rapid detox program involving Naltrexone. She had a bad reaction to it and it interfered with her pain management (Red 20-1). She stayed away from Naltrexone but had not returned to heroin by the time of the hearing (August 2000). Her friend Mr Abrahams also gave evidence to the effect that the detox program in 2000 appeared relatively successful (see Red 23 L-W). This perhaps offers cautious hope for the future, although there is a good deal of evidence (including that of the respondent herself) taking a more gloomy prognostication. None of this casts much light on the issue as to the causal relationship between the accident and the post-accident drug abuse. Nor does it assist in determining the respondent's capacity to earn income pre-injury. 38 To my mind the critical issue is the respondent's pre-accident condition and capacity to earn income. 39 The evidence as to the her intentions and capacity to obtain employment pre-accident was virtually non-existent. Indeed, the case (if any) she was endeavouring to make in relation to economic loss is extremely elusive. 40 The Statement of Claim provided no particulars of economic loss, but asserted that they would be supplied. The original Statement pursuant to Part 12 r4A (filed 6 November 1998) said (Red 10): The plaintiff was not employed as at the date of this accident and in fact had not worked for many years prior to same. she was in receipt of Social Security benefits. The plaintiff will claim however that by reason of the injuries and continuing disabilities she has suffered in the subject accident her employability on the open labour market has been reduced. It is for this marked reduction in the plaintiff's earning capacity that a claim will be made on a general basis.

41 An Amended Statement Pursuant to Part 9 Rule 27 said this (Red 13): The plaintiff was not employed as at the date of this accident. Prior to the accident however the plaintiff had undertaken occasional work in 1995 for a company known as Prix-Cars at Ermington. The plaintiff was employed to drive cars to the de-waxing bays. For the days that the plaintiff worked she was paid $80.00. That company ceased operation in either December 1995 or January 1996 and the plaintiff has not been employed since. It will be alleged that the injury suffered in the subject accident has served to significantly diminish the plaintiff's employability and earning capacity. A general claim for same will be made as from the date of the subject accident and continuing until the plaintiff's anticipated retirement age of 65 years. 42 The only evidence of paid employment between 1975 and July 1996 was the following (Black 13F-O): Q. So far as work is concerned you have not worked since this accident occurred, is that so? A. No. Q. Was your last job for a firm called [Prix-Cars]? A. For contractors that work for [Prix-Cars], yes. Q. What did you do there? A. I drove cars down to like a shed where two men hit them with a guerney and waxed them, they were brand new cars, drove them back up, jumped in another one, brought them down, kept two men running with cars driving them backwards and forwards as they'd be waxing them. HER HONOUR: Q. What were you doing to them? A. I was driving the cars down to a shed. Q. Driving them down? A. Yes, and the men were there waxing them and I was taking them back and parking them, bringing two more down or one at a time.

43 The appellant correctly points out that no attempt was made to establish the duration of this employment, the wages (if any), why the employment ceased, whether the employment was intermittent or regular, nor why the respondent was not in employment after Prix-Cars closed down six months before the accident. 44 One must infer that the respondent reverted to her existence on social security benefits. 45 At this stage it is relevant to set out the trial judge's findings as to economic loss (Red 50-51): Mr O'Connor has submitted that although the plaintiff said she could not do the job she had done previously, she did not say but for the injury she had any intention of working. That is correct. She had, however, worked in 1995, that is, in the year prior to the accident. This was for the company called [Prix-Cars] which involved her driving cars backwards and forwards to be detailed. In my view it is understandable that she did not seek work during the period from the date of the accident to the date of hearing but given her employment history I propose to award her an amount of $26,000 which covers a period of 266 weeks form the date of accident to the date of judgment. Mr O'Connor has said there is no evidence that prior to this accident she was seeking work and there was no evidence that if she did find work, how long she would work for. That again is correct. There is no such evidence before the court. There is evidence that she has lost part of her earning capacity and I propose to award her an amount for future wage loss. Mr Lidden has put a figure of $200 per week before the court, representing one half of a net wage of $400 per week. I can take judicial notice that in NSW at the time of the hearing the average weekly earnings of a female was $720 gross per week and approximately $400 net per week. Taking into account the matters which Mr Lidden put before the court relevant to the past history of her employment and therefore likely to be the pattern of her employment in the future a loss of $200 per week for the future seems appropriate. In accordance with s70A of the Act, I am satisfied that there is at least a 25% likelihood that the plaintiff will sustain a diminution of future economic capacity. I think it unlikely that Ms Murphy would work beyond the age of 60. $200 per week for 16 years discounted at 5% and less 15% for vicissitudes is $98,515. I propose to award her $100,000.

46 In relation to economic loss the appellant's written submissions point to those aspects of the pleadings, particulars and evidence that I have already dealt with. The findings of the trial judge are attacked as wrong to the point of irrationality. 47 As regards the award for past economic loss it is submitted that the plaintiff's employment history provided no basis for an economic loss award for the period from 9 July 1996 to the date of judgment. 48 As regards the award for future economic loss at the rate of $200 per week, senior counsel further submitted (in the written submissions): In our submission this decision was irrational. The Trial Judge had just allowed $100.00 per week for the period prior to the trial; there was no suggestion the plaintiff's condition was improved by or at the trial. There was no basis for treating her past differently from the future. It was irrational to do so. Moreover her pre-accident history involved drug addiction, being on Social Services benefits with a 20 year unemployment history. There was no rational basis upon which the Trial Judge could find that a miracle had occurred and, but for the accident, she would have embarked upon a steady earning career until 60 years of age, at $200.00 per week. For the foregoing reasons there was no material upon which the Trial Judge could find that the requirements of [s70A] were satisfied. Nor did the Trial Judge deal with the issue beyond the most perfunctory acknowledgement Red 51B .

49 The appellant's attack on the awards for economic loss developed on several fronts (some of them overlapping). 50 First, it is submitted that the primary judge was not entitled on the evidence to find that the accident caused or materially contributed to the lapse into heroin dependency, with its debilitating consequences. I have rejected this submission. 51 Secondly, it is submitted that the judge failed to offset the respondent's pre-accident vulnerability and predisposition to drug abuse. 52 Thirdly, it is submitted that Her Honour gave no effect to the basal principle that damages for economic loss suffered by an injured plaintiff are only allowed where "the diminution of his earning capacity is or may be productive of financial loss" (Graham v Baker (1961) 106 CLR 340 at 347, Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 3, Husher v Husher (1999) 197 CLR 138 at 143). The extreme paucity of evidence capable of establishing that this plaintiff had any real prospect of gainful employment meant that it was quite erroneous to look to average weekly earnings for women in the paid workforce as any pointer to her situation uninjured. Indeed, inferences adverse to the respondent should have been drawn from the respondent's failure and/or inability to cast relevant light on her economic situation. 53 Fourthly, as regards damages for future economic loss, it is submitted that the primary judge erred in not giving effect to s70A of the Motor Accidents Act 1988 which provides: A court shall not award damages for future economic loss or damages for diminution of future economic capacity unless the claimant first satisfies the court that there is at least a 25 per cent likelihood that the claimant will sustain a future economic loss or that there is at least a 25 per cent likelihood that the claimant will sustain a diminution of future economic capacity, as the case requires.

54 Fifthly, the allowance of the conventional 15% for vicissitudes is said to have been misplaced in the case of this very vulnerable plaintiff. 55 I would accept submissions two, three and four, finding it unnecessary in the circumstances to trouble with submission five. The awards for economic loss cannot stand. 56 Should anything be substituted by way of a cushion? I believe not. It would be an entirely speculative and unmerited provision as regards the pre-trial period. As for the future, the respondent falls well short of s70A's threshold.

Non-economic loss 57 The primary judge was satisfied that the respondent's ability to lead a normal life had been significantly impaired for a continuous period of not less than 12 months by the injuries suffered in the accident. This conclusion is not challenged in the appeal. 58 However, the appellant submits that her Honour erred in finding that the non-economic loss was 35% of a most extreme case ($99,500). It is submitted that it did not exceed 15% of a most extreme case, with the consequences that no damages were awardable by virtue of s79A(4). The appellant submitted that: Upon the foregoing it was wrong to find the plaintiff's non-economic loss was 35% of a most extreme. In our submission it did not exceed 15% of a most extreme case and no damages were awardable by virtue of Section 79A(4) of the Act.

59 At the end of the day I am not persuaded that her Honour erred in this matter. True, there is the uncertainty as to whether or not she factored in the respondent's predisposition to depression and heroin abuse with their painful and damaging consequences. But we do know that the accident triggered a relapse into addiction. Added to this are the findings as to the significant physical injuries and ongoing physical problems. 35% is high but not outside a permissible range for accident-caused pain suffering and loss of amenity in life.

Disposition 60 I would uphold the appeal in part, by setting aside the award for economic loss. The verdict is reduced accordingly. 61 The respondent should pay the appellant's costs and have a certificate under the Suitors' Fund Act if qualified. 62 BEAZLEY JA: I agree with Mason P.

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