Supreme Court of NSW|1998-12-23|Before: Mason P, Priestley JA, Handley JA

Kavanagh v Akhtar Matter No Ca 40492/97 [1998] NSWSC 779 (23 December 1998)

The Supreme Court of New South Wales Court of Appeal

NATURE OF JURISDICTION: DISTRICT COURT - BARD ADCJ

ALLOWED/DISMISSED: APPEAL DISMISSED/CROSS APPEAL ALLOWED

Damages - measure of damages - personal injuries - general damages - whether excessive

Damages - negligence - causation and remoteness - injured person cuts her hair as a result of injuries - injured person and husband separate due to cutting of hair - whether resulting psychiatric injury compensable - effect on causation of decision or act of third party - foreseeability of precise consequences of negligence not required

The respondent was injured while shopping at the appellant's premises. A heavy box containing perfume fell on her as it was being passed between two employees of the appellant. The respondent sustained injury to the left shoulder, left arm and jaw. As a result of these injuries, she was no longer able to care for her extremely long hair. Some months after the accident, she had her hair cut short. Her husband reacted with extreme hostility to the cutting of her hair, leading to severe stress on the marriage and finally, separation. The respondent sustained psychiatric injury as a result of the failure of the marriage.

Negligence was found against the appellant. Damages were assessed at $233,191 by Bard ADCJ. On appeal, this award was challenged by both the appellant and the respondent. The appellant challenged the amount of general damages, Griffiths v Kerkemeyer damages, superannuation loss and future economic loss. The respondent/cross appellant challenged the trial judge's rejection of two claims, one of which was for an injury to the neck and the other for psychiatric injury sustained as a result of the breakdown of the marriage. After hearing argument relating to the appeal, the Court pronounced orders dismissing the appeal with costs, the reasons to be stated in the judgment on the cross-appeal.

HELD, dismissing the appeal and allowing the cross-appeal,

(1) The $60,000 award of general damages based on findings of injury to the left shoulder, left arm and jaw were well within the range of an appropriate award having regard to the painful, continuous and permanent injuries suffered.

(2) Insufficient evidence was available to challenge the finding of the trial judge that the neck pain experienced by the respondent was not related to the accident.

(3) Causation is not necessarily negated by the intervention of some act or decision of the plaintiff or a third party which constitutes a more immediate cause of the loss or damage than the defendant's negligence. The respondent's decision to cut her hair, though voluntary in the sense that the respondent had a choice, was nevertheless the product of the tortiously-created pain and discomfort under which she was labouring. And that led to the psychiatric illness in consequence of the stress placed on the marriage.

Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1, applied.

(4) The desertion by the husband of the respondent was a reasonably foreseeable consequence of the accident. It was not necessary that the appellant should have foreseen the precise nature of the consequences. It was sufficient that the appellant should have foreseen psychiatric injury itself as a foreseeable consequence of the physical injury inflicted on the respondent.

Commonwealth v McLean (1996) 41 NSWLR 398; Encev v Encev (Ashley J, Supreme Court of Victoria, unreported, 24 November 1997); Hird v Gibson [1974] Qd R 14; Hughes v Lord Advocate [1963] UKHL 1; [1963] AC 837; Nader v Urban Transit Authority (NSW) (1985) 2 NSWLR 501, applied.

(5) The Court of Appeal had power to entertain an application to amend the statement of claim (which had claimed $250,000 being the limit at time of trial) to the higher sum being the amount which should have been awarded by the trial judge. The District Court's jurisdiction was increased beyond $250,000 on the day on which judgment was pronounced. Even though the sum awarded by the trial judge was (erroneously) under $250,000 and no application was made to amend at trial, the Court of Appeal has power on appeal to make such order as is appropriate.

Quilter v Mapleson (1882) 9 QBD 672, applied.

2. On or before 5 February 1999 the parties are to submit to the Registrar short minutes to give effect to these reasons, failing which the respondent to the cross appeal is to file by that date the evidence and submissions relied upon in opposition to the cross-appellant's application to amend the statement of claim, and the cross-appellant is to file and serve her evidence and submission in reply within a further period of 7 days.

MASON P: The respondent was injured while shopping at the appellant's premises. A heavy box containing perfume fell on her as it was being passed between two employees of the appellant. It struck her left shoulder region and caused her to be thrown forward. She suffered a blow to the front of the face as she hit shelving before ending up on the floor of the shop. Negligence was found and is no longer in issue.

Bard ADCJ assessed the respondent's damages at $233,191 made up as follows:

The award has been challenged by both the appellant and the respondent. The appellant sought to halve general damages to $20,000 (past) and $10,000 (future), with consequential adjustment of interest. The awards for Griffiths v Kerkemeyer damages, superannuation loss and future economic loss were also challenged. After hearing argument relating to the appeal, the Court pronounced orders dismissing the appeal with costs. Set out below are my reasons for joining in such order. In the cross appeal the respondent seeks to increase each component of general damages to $50,000, making an award of $100,000 on that account. It will be seen that this challenge also raises an issue concerning the jurisdictional limit of the District Court. Judgment stood reserved on the cross appeal.

The respondent was born in 1955 in Fiji. She is an Indian Muslim. She married in 1974. There are four children of the marriage, being born in 1976, 1981, 1987 and 1990, the first three children being girls. The family as it then was moved to Australia in July 1985.

The respondent consulted a general practitioner, Dr Torrevillas, on the day of the accident, 30 November 1994. She was in pain in the jaw area and the left shoulder. The doctor diagnosed contusion to the left jaw and ear areas; and a strained left shoulder joint. Treatment consisted of strong analgesics, Panadeine Forte, and Feldene.

The pain continued in both areas. The respondent was referred to an orthopaedic surgeon, Dr Irani, in January 1995. Examination revealed tenderness over the top of the shoulder, along the supra-spinatus tendon. Movements of the shoulder were restricted to 70 degrees of flexion and abduction. Dr Irani opined that the respondent had contused her left shoulder and her left temporo-mandibular joint as a result of the injury. He referred her for physiotherapy. Dr Irani also observed weakness of grip in the left hand.

In February 1995 x-rays relating to the facial injuries were taken. They confirmed a marked impairment in the opening of the mouth. Dr Donohoo, a radiologist, identified a bilateral posterior subluxation at the left temporo-mandibular joint, with the condyloid heads lying behind the discs. When the temporo-mandibular joints were next x-rayed (in January 1996) it was observed that both joints appeared normal. There was fairly good movement of the mandibular heads between opening and closing of the mouth representing an improvement since the previous examination.

Dr Donohoo x-rayed the cervical spine and left shoulder in August 1995. He observed no abnormality in the left shoulder. However the cervical spine revealed disc degeneration of minor degree at C5-C6, limitation of flexion and minor limitation of extension. These problems with the cervical spine appeared to have passed, so far as x-rays revealed, by January 1996 (AB 207).

In August 1996 Dr Dilley reported that the respondent had ongoing problems with the left shoulder and that physiotherapy had not helped her at all. He referred her to an orthopaedic surgeon with a particular expertise in shoulders.

The respondent was assessed by Dr Davis, a practitioner in occupational medicine. In May 1997 he reported that the respondent was unfit for any heavy lifting, carrying, forceful use of her upper limbs, work above mid-chest level, and that she should avoid any sustained cervical postures. He concluded that

"at the present time Mrs Akhtar is significantly disadvantaged in all aspects of her life and in particular requires paid domestic assistance of up to 20 hours per week. These duties are currently done by her family and include cleaning, bed making, shopping, tidying up, ironing and cooking.

She is clearly unfit for any formalised work and will remain so until the foreseeable future.

I estimate Mrs Akhtar to be suffering with a 10% impairment of her neck and a 20% impairment of her left upper limb."

Medical evidence led by the appellant disputed these ongoing neck and shoulder injuries. However, the trial judge accepted that the respondent had continuing left shoulder and arm symptoms. Her Honour held that there was no evidence to refute the respondent's alleged reduced restriction of movement and that the complaints in relation to the left shoulder and arm had been consistent. While observing that the respondent did exaggerate the extent of her symptoms, her Honour concluded that:

"...with the disuse of her left arm she has been left with a considerable disability which will restrict both her domestic capacity and her capacity to work on the open labour market particularly as she is left hand dominant".

The judge was satisfied that the respondent suffered painful and permanent injury to her left shoulder and left arm. The respondent who is left handed now has pain from the top of her left shoulder down the arm, with numb fingers.

The respondent's case in relation to her jaw injury was also substantially accepted by the trial judge. The respondent complained of pain in her jaw area from the date of injury. X-rays in February 1995 established that there was a contused left temporo-mandibular joint. Dr Ong, an orthodontist also confirmed in August 1996 that the respondent suffered from subluxation of the temporo-mandibular joints, ie limited movement and range of mandibular excursion, tenderness of muscles of mastication and associated musculature, inflammation and pain over the temporo-mandibular areas. She could only open her mouth 25mm between her front teeth and only 5mm mid-line to either left or right. This obviously restricted speech, eating and yawning. When examined by Dr De Burgh Norman in January 1997, the respondent was found to have an irritable joint for which he recommended treatment by way of temporo-mandibular arthroplasty.

The trial judge thought that the respondent exaggerated the extent of her symptoms to some degree. Nevertheless she awarded $60,000 general damages based on her findings of injury to the left shoulder, left arm and jaw. In my view this was well within the range of an appropriate award having regard to the painful, continuous and permanent injuries suffered.

The appellant's attack on general damages appears to contest the findings concerning the accident itself. However, these were based on the unchallenged evidence of the respondent, and corroborated by her daughter Sharon. The appellant did not call evidence from key employees at the store. The absence of evidence about the exact dimensions or weight of the box which fell is, if anything, more a defect of the appellant's case than the respondent's. In any event, it does not cast doubt upon the respondent's account of the accident and its demonstrable medical consequences.

Another line of attack was directed at the respondent's evidence relating to her inability to chew and eat normal food as the result of the injury to her jaw. This was challenged on the basis of a weight increase from 68 kilos prior to the accident to almost 90 kilos at the date of trial. However, I do not see this as providing clear evidence of rebuttal. After all, the respondent was able to eat soft foods such as spaghetti and curry and these are capable of causing weight increase. The trial judge accepted that the respondent was restricted in the movement of her jaw despite her increase in weight. This conclusion rested securely upon the finding that the respondent's complaint of injury had been consistent from the date of the accident. The trial judge also accepted the respondent's evidence that the respondent did very little activity because of her depressed state. She found that this would account for the increase in weight. I see no error in this assessment.

The appellant also challenged the awards for past and future economic loss, loss of superannuation entitlements and damages for future domestic care and assistance (Griffiths v Kerkemeyer).

Most of the appellant's submissions on these matters relied upon the same grounds as those advanced in challenging the award of general damages. It is unnecessary to repeat why those arguments were rejected.

The primary judge had accepted the respondent's evidence that she had planned to re-enter the paid workforce shortly before the accident. The respondent had primarily worked as a cashier and a cleaner and it was established that she would have earned over $31,000pa had either such employment re-commenced. In awarding damages for past and future economic loss, her Honour confined herself to the impact of the physical injuries alone. There was no arithmetical calculation in the award of $50,000 for loss of future earning capacity, but it is tolerably clear that she awarded a cushion against the respondent's vulnerability in the open labour market stemming from her continuing disabilities. I see no error in this approach, given the respondent's capacity to obtain paid work had she not been injured and the probability that she would have done so in the light of the ages of her children.

The reasons for awarding $90,000 as Griffiths v Kerkemeyer damages were:

The plaintiff is limited in her capacity to perform domestic tasks and I accept that an allowance should be made for domestic assistance at 5 hours per week and I therefore allow an amount of $90,000 for this head of damage.

The reasoning is sparse, but this was not the basis of the appellant's challenge. In submitting that the award was excessive, senior counsel pointed out that 5 hours per week at an accepted rate of $15 per hour would produce a figure of $89,700 on the assumption of need continuing until the respondent's 65th birthday. Of course, the respondent's need for assistance would not cease at that age, and the usual factors calling for a discount for vicissitudes relate to those affecting earning capacity (cf Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485 at 497). In my view the findings in relation to physical injuries together with the ongoing stress as a result thereof established that there was an ongoing restriction that severely impeded the respondent in her capacity to perform her domestic duties. The finding of five hours work per week, limited to age 65 and calculated at the rate of $15 per hour (when the evidence suggested it would cost $16.75 per hour) does not reveal appealable error.

Nor is the assessment of $10,000 for loss of superannuation entitlement excessive, in the light of the respondent's injuries and her pre-accident work expectations. The figure assessed is sustained by an expert report that was in evidence. Once again the exiguity of the reasoning is not a ground of appeal.

For these reasons the appeal was dismissed with costs.

The respondent/cross appellant challenges the award of $60,000 general damages. She seeks $100,000. Two matters are raised:

1. the trial judge's rejection of the respondent's claim that she suffered a neck injury in the accident; and

2. the trial judge's rejection of the claim based upon psychiatric injury.

The trial judge rejected the respondent's complaint that she suffered a neck injury in the accident. No complaint of such injury was made on the day of the accident, nor recorded by the respondent's general practitioner until June 1995. No record of any details of a neck injury appears in the February 1995 report of Dr Irani, the respondent's treating orthopaedic surgeon. Nor did the respondent claim for this injury in her statement of claim.

Medical practitioners who treated or saw the respondent in or later than late 1996 record complaints of injury to the neck, but these are unsupported by any x-ray or other objective manifestation. The trial judge's conclusion was that, although the respondent may experience some neck pain, she was not satisfied that this was related to the accident, particularly as the respondent took some considerable period of time before she complained of any neck symptoms.

We were invited by counsel for the appellant to overturn this finding on the basis that the neck injury may well have been masked by the other, established injuries. However, as was frankly conceded, this submission is not grounded upon any medical evidence given in the trial. I do not think that the trial judge's conclusion on this aspect of the case can be overturned. It is unclear whether it rests, in part, upon any assessment of the respondent's credibility. I do note however that the trial judge recorded that the respondent had exaggerated some of her symptoms. But even if the finding did not stand upon some assessment of the respondent's credibility, the evidentiary basis for challenging it is lacking.

The principal basis upon which the respondent challenged the award of general damages concerned the rejection of the claim that psychiatric injury stemmed from the accident. It will be seen that this raises difficult issues of causation and remoteness of damage.

The pain and discomfort reflected in the award of general damages had an obvious impact on the respondent and her marital relations. The trial judge accepted that the respondent suffered stress as a result of her ongoing physical disabilities. However, this would not have had any potential additional impact on general damages were it not for the fact that the respondent cut her extremely long hair on 27 May 1995. As noted above, the accident occurred on 30 November 1994. Her accident-created disabilities meant that she was no longer able to care for her hair. For a period she had been assisted in this regard by her eldest daughter Sharon. But Sharon left Sydney in March 1995 and the difficulty in brushing and otherwise caring for her hair without assistance led the respondent to have the hair cut short by one of her younger daughters. This evidence was accepted by the trial judge, and the causal link between the injury and the cutting of the hair has always been conceded by the appellant.

It was also found, and is not in dispute, that this act had an extreme consequence upon the respondent's marital relations, which led in turn to psychiatric injury. The respondent's husband took objection to conduct which he had not authorised, and which upset him greatly. The evidence suggests that the upset was due to at least two factors. The first was extreme displeasure based on what he perceived as defiance of his scripturally-based right of control over his wife as well as her defiance of religious injunctions about women cutting their hair without permission of their husband (as confirmed by evidence given by an Imam). The respondent's husband was a very religious Muslim who prayed five times a day and attended the mosque on Fridays. Secondly, the husband was obviously upset at the loss of an adornment which had been a source of sexual attraction. The respondent was unchallenged in her evidence that her husband married her "for her beautiful hair" (cf AB 30, 46).

At trial, the respondent frankly admitted that she had not thought ahead to the possible consequences that cutting her hair might have upon her marital relationship. She knew that her husband had told her not to cut her hair and that he didn't want it cut. She also knew that it was customary for women in her cultural group not to cut their hair. But she thought that her husband would not object because she did it as a direct consequence of the accident and the ongoing pain and discomfort she was suffering. Her marriage was "one of the best marriages a person should have" (AB 32). She "thought like he was sympathetic after the accident" (AB 47). She accepted in cross-examination that her husband's reaction was an unexpected shock (AB 47).

The respondent may have been naïve or desperate in her discomfort, or both. She believed that she was going to lose the use of her left hand permanently. As regards the charge of religious or marital disobedience, the respondent could take some comfort (metaphorically speaking) in the evidence of the Imam that medical reasons might justify a married woman cutting her hair, and that one might reasonably expect that an Islamic husband would give his permission in such circumstances.

Whatever justification the respondent had, the immediate consequences were devastating. The respondent's husband lost control, used extremely insulting language, ceased sleeping with his wife and commenced to sleep with another woman. The husband stopped helping with household chores, something he had been doing as her disability continued in the months after the accident. There was an incident when he threatened the respondent with a knife.

It is hardly surprising that this reaction caused the respondent to become very depressed. She commenced taking anti-depressants prescribed by her general practitioner but they did not impede the onset of psychiatric illness. The extreme impact of the husband's reaction upon the respondent's mental health is well attested to by the evidence of two psychiatrists Dr Dalton and Dr Dent. Dr Dalton described the respondent as severely depressed with suicidal intentions.

Dr Dent saw the respondent in April and May 1997. He observed severe evidence of depression. He formed the clear view that she might suicide and arranged for her to be admitted to a private clinic. Subsequently there was intervention by the Imam, who persuaded the husband to return home and the respondent to abandon the threat of suicide. This led to some improvement in the respondent's condition, consequent upon limited restoration of marital relations. Dr Dent's diagnosis was that the respondent was suffering from:

Chronic Pain Disorder. There has been a significantly severe Depression, which has been genuine, severe and bringing her right to the edge of extreme risk of completing her threat to suicide..

She has cut her hair in reaction to the Chronic Pain Disorder following her physical injuries on 30th May, 1994...

The cutting of her hair in reaction to her injuries has caused a significant worsening of her Chronic Pain Disorder, partially by way of the emergence of symptoms of what can only be described as Major Depression (Appendix) where only five of those criteria need to be present for two weeks to allow the diagnosis - a Major Depression in itself carries a substantial suicide risk, even in the absence of such gross changes within the family dynamics as occurred in your client's case; although it is also evident that those changes in the family dynamics were a consequence of her cutting her hair and that a consequence of the Chronic Pain Disorder, whereby there is further escalation of severity of the Chronic Pain Disorder.

I think that the continued presentation now is more reflective of the psychiatric component of the Chronic Pain Syndrome, rather than any underlying physical disability. I think that degree of psychiatric presentation is overwhelmingly so.

You will understand that one can only give a broad estimate of this by ways of relative contribution as it now presents, but I would suggest that probably a 25% contribution from physical causation and 75% from ongoing psychological reinforcers would be the way to view this now.

However, all of it has flowed on from the accident of 30th May, 1994 and what has subsequently evolved in her life and circumstances: in that way her ongoing complaints of pain and attendant psychiatric problems relate to the accident by way of original causation.

The extreme hostility from the husband abated somewhat over time, but it is clear that the marriage has failed in consequence of this event and its sequelae. The couple have resolved to separate. I do not understand this evidence to be challenged, although some questions were put to the respondent's daughter in cross-examination to establish that after the accident and before the hair cutting the husband had complained that the respondent had become lazy and was always sick (AB 173-4).

The trial judge accepted the evidence about the breakdown of the marriage in consequence of the hair cutting. And she also largely accepted the evidence of the psychiatrists called by the respondent. The critical portion of her judgment was as follows:

I am satisfied that the major component of the plaintiff's psychiatric problems results from the deterioration in her marital relationship following the hair cut. The relationship deteriorated because the plaintiff was a religious moslem who would have been concerned that the plaintiff had defied the laws of Islam by cutting her hair and offended him by doing so without his permission. This is evident from the evidence given by the plaintiff, her daughter and the Imam. The plaintiff clearly found it necessary to cut her hair because her daughter Sharon who attended to her hair was leaving Sydney and could no longer assist. It is surprising given the plaintiff's husband's commitment to his religion that the plaintiff did not anticipate his reaction but there is no doubt that she has suffered the consequences of his reaction ever since.

It can therefore be seen that there are unchallenged findings that the appellant's tort materially contributed to the respondent's act of cutting her hair and that this act materially contributed to a sudden and significant breakdown of marital relations which in turn produced psychiatric injury. Nevertheless, the respondent failed to recover damages in relation to this injury because the learned judge was not satisfied that the stress resulting from the marital breakdown resulting from the haircut was a reasonably foreseeable consequence of the injury. This was in a context where it was accepted that the respondent would have suffered some ongoing stress as a result of her ongoing physical disabilities.

The cross-appellant's challenge throws up two intertwined issues: causation and remoteness of damage. For each inquiry there are formulaic guidelines to be found in recent decisions of the High Court, coupled with frank acknowledgments that policy-informed normative judgments are involved.

In Chappel v Hart [1998] HCA 55 at 7 Gaudron J observed that:

Questions of causation are not answered in a legal vacuum. Rather, they are answered in the legal framework in which they arise. For present purposes, that framework is the law of negligence. And in that framework, it is important to bear in mind that that body of law operates, if it operates at all, to assign a duty to take reasonable steps to prevent a foreseeable risk of harm of the kind in issue.

Several of the judgments in Chappel emphasised the need to start any legal inquiry as to causation from an understanding of the scope of the duty found to have been breached: per Gaudron J at 8-9; per McHugh J at 25; per Gummow J at 63-64; per Kirby J at 93. And each of the judgments reaffirmed March v Stramare (E & MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, which had established that causation is to be approached as a question of fact to be answered "by applying common sense to the facts of [the] particular case" (March at 515, 523, citing Stapley v Gypsum Mines Ltd [1953] UKHL 4; [1953] AC 663 at 681). As Gaudron J pointed out in Chappel (at 7) this "common sense approach" applies both to the question whether a particular act or omission caused any damage at all, and to the question whether some particular damage resulted from the act or omission in question. Her Honour cited Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1 as authority supporting the latter proposition.

Medlin illustrates that causation is not necessarily negated by the intervention of some act or decision of the plaintiff or a third party which constitutes a more immediate cause of the loss or damage than the defendant's negligence. Indeed, as Deane J, Dawson J, Toohey J and Gaudron J point out (at 6-7):

... in some cases, it may be potentially misleading to pose the question of causation in terms of whether an intervening act or decision has interrupted or broken a chain of causation which would otherwise have existed. An example of such a case is where the negligent act or omission was itself a direct or indirect contributing cause of the intervening act or decision.

There, the intervening act or decision was the decision of the plaintiff (an academic at a university) to accept premature retirement because of the impact of chronic and sometimes intense pain, sleep disturbance and associated loss of "intellectual energy". It did not break the chain of causation. Rather, it was held to support the conclusion that those effects of his injuries were a causative influence in the premature termination of his employment. They contributed to the plaintiff's decision to accept early retirement, with its negative impact upon his earning capacity. In the judgment of the majority it is stated (at 10) that:

If ...it appears that a plaintiff's decision to retire prematurely would not have been made were it not for the fact that the effect of accident-caused injuries is that continuation in employment would subject him or her to constant pain and serious risk of further injury, it may well be that commonsense dictates the conclusion that the plaintiff's decision to retire prematurely was a natural step in a chain of causation which suffices to designate, for the purposes of the law of negligence, the termination of the employment as a product of those injuries.

In Medlin the one point on which the majority of the Court differed from McHugh J was in relation to the "reasonableness" of the plaintiff's decision. The trial judge had found that Professor Medlin had not acted reasonably in deciding to retire. The High Court disagreed, but on different bases. McHugh J indicated (at 22) why the onus lay on the defendant to establish unreasonable conduct, not only in the context of a suggestion of failure to mitigate, but also in the context of causation. His Honour found that it was not unreasonable for the plaintiff to have retired early. However, without disputing McHugh J's conclusion on the facts, the majority rejected McHugh J's non-contextual approach to the reasonableness of Professor Medlin's conduct. Deane J, Dawson J, Toohey J and Gaudron J emphasised (at 13) that:

Any question of reasonableness should be framed in terms of what is reasonable as between the plaintiff and the defendant in the context of assessing damages for negligence rather than as a question of whether the plaintiff acted reasonably or unreasonably in resigning his post.

The relevant question was not whether the plaintiff "should" have continued in his University post or whether his decision to retire was not "reasonable" but whether, in the context of what was reasonable between the plaintiff and the defendant in determining the defendant's liability in damages, the premature termination of the plaintiff's employment was the product of the plaintiff's loss of earning capacity notwithstanding that it was brought about by his own decision to accept voluntary retirement.

As I have already indicated, the judgments in Chappel also emphasise the need to address causation in the context of the particular wrong that the defendant inflicted upon the particular plaintiff. This reasoning is clearly capable of being applied to the present circumstances. The respondent's decision to cut her hair, though voluntary in the sense that the respondent had a choice, was nevertheless the product of the tortiously-created pain and discomfort under which she was labouring. And that led to the psychiatric illness in consequence of the stress placed on the marriage. Cf NSW Insurance Ministerial Corporation v Myers (1995) 21 MVR 295.

The point on which the High Court divided in Medlin also establishes that it would be wrong to address the respondent's conduct exclusively in the confines of her own marital and religious culture. To enquire merely whether she unreasonably disobeyed her husband or the dictates of her religion is not only unseemly, it is wrong. On the facts of this case it would be unreasonable for the appellant to take advantage of these restraints which the respondent put aside in her pain and discomfort. To do that in circumstances where it cannot be said that the respondent reacted unreasonably to the situation in which the appellant had placed her would be to take advantage of the appellant's own wrong. After all, that wrong had been the event that placed the respondent in a vulnerable position in which she lacked an effectively free choice.

For similar reasons, it would be wrong to focus upon the husband's reaction to the respondent's conduct. Obviously it was voluntary conduct by a third person. But it does not follow that this necessarily broke the so-called chain of causation. If a defendant injures a plaintiff, causing disfigurement or irritability which in turn leads to the breakdown of the plaintiff's marriage, the reaction of the marriage partner to the disfigurement or irritability does not negative causal connection with the loss resulting from the breakup, since it was caused by the defendant's wrong (see Hart and Honore, Causation in the Law 2nd ed p178, citing Lampert v Eastern National Omnibus Co Ltd [1954] 2 All ER 719 and Hird v Gibson [1974] Qd R 14). In the context of foreseeability (below) I refer to a number of cases where an injured plaintiff's general damages were assessed on a basis that included the hurtful or psychiatrically damaging impact of the desertion by a partner unable to continue living with a disfigured person.

The present is a case where the damage of which the respondent complains would not have happened without the intervention of the appellant's negligence. This assists in establishing a legally recognised causal connection, although it is not determinative, for the reasons demonstrated particularly by Hayne J in Chappel at 124-125. I see no reason why the causal link between the tort and the psychiatric injury was not established. Rather, it remained unbroken by the respondent's decision to cut her hair. Applying the test of common sense and experience commended by the authorities, it seems to me clear that the severe breakdown of marital relations and their sequelae were caused by the accident and the injuries which the respondent suffered therein. The mere fact that the hair-cutting was a conscious act of the respondent did not break the chain of causation, given the injury-related reasons for this step.

The first Wagon Mound case (Overseas Tankship (UK) Ltd v Mort's Dock & Engineering Co Ltd [1961] UKPC 1; [1961] AC 388) rejected the authority of Re Polemis [1921] 3 KB 560 which had stated that a defendant was responsible for all of the direct consequences of a negligent act. Viscount Simonds said (at 422) that:

... it does not seem consonant with current ideas of justice or morality that for an act of negligence, however slight or venial, which results in some trivial foreseeable damage the actor should be liable for all consequences however unforeseeable and however grave, so long as they can be said to be "direct". It is a principle of civil liability, subject only to qualifications which have no present relevance, that a man must be considered to be responsible for the probable consequences of his act. To demand more of him is too harsh a rule, to demand less is to ignore that civilised order requires the observance of a minimum standard of behaviour.

Nevertheless, immediately before this dictum his Lordship observed that it was not probable that many cases would have a different result stemming from the rejection of the directness test in Re Polemis. The case law following Wagon Mound (No 1) amply bears out the analysis of Sir Robin Cooke (as he then was) who described Viscount Simonds' test as "a flexible concept deprive[d] ...of any fettering rigidity" (Sir Robin Cooke "Remoteness of Damages and Judicial Discretion" [1978] Cam LJ 288). In Nader v Urban Transit Authority (NSW) (1985) 2 NSWLR 501 at 537, McHugh JA indicated that not everyone had shared Lord Simond's view in the passage quoted above, and that this has contributed to the "subsequent erosion of The Wagon Mound"(citing Dean J in Siwek v Lambourn [1964] VicRp 47; [1964] VR 337 at 339). The flexibility of the Wagon Mound principle was quickly demonstrated in Hughes v Lord Advocate [1963] UKHL 1; [1963] AC 837, to which I shall return.

In Wagon Mound (No 2) (Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty Ltd) [1966] UKPC 1; [1967] 1 AC 617, the Privy Council found the damage incurred to have been sufficiently foreseeable because the defendant should have regarded the risk of fire from oil spilling as a possibility, even though it was one which would have become an actuality only in very exceptional circumstances. In Lord Reid's words (at 643), it was sufficient that there was a "real risk [occurring] to the mind of a reasonable man in the position of the defendant's servant and which he would not brush aside as far-fetched". In Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 112 at 120 the High Court approved the following passage from Haynes v Harwood [1935] 1 KB 146 at 156:

It is not necessary to show that this particular accident and this particular damage were probable; it is sufficient if the accident is of a class that might well be anticipated as one of the reasonable and probable results of the wrongful act.

See also Castellan v Electric Power Transmission Pty Ltd (1967) 69 SR(NSW) 159 at 169; Assaf v Kostrevski (Court of Appeal, unreported, 30 September 1998).

In Commonwealth v McLean (1996) 41 NSWLR 398 at 402-407 Handley JA and Beazley JA discussed the recent case law in relation to remoteness of damage. Santow AJA concurred. I am grateful to adopt their Honours' analysis of the legal principles. The propositions which are of present relevance are:

1. The "egg shell skull" principle makes a defendant liable for damage of an unforeseeable extent, but not for unforeseeable damage of a different kind. Under this principle a defendant is liable for additional damage of a foreseeable kind suffered by a plaintiff who has some special vulnerability (McLean at 406E).

2. In personal injury cases where psychiatric injuries supervene on physical injuries the plaintiff's right to recover depends on the foreseeability of psychiatric injury, at least where the harmful consequences supervene as a result of voluntary and deliberate conduct by the plaintiff or a third party (McLean at 407, citing Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; (1985) 156 CLR 522 and March).

3. A wrongdoer is responsible for all damage of the same type or kind as that which was reasonably foreseeable, even if the particular damage, or its extent, were not reasonably foreseeable, or the damage occurred in an unexpected or unforeseeable manner (McLean at 403E citing Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 112 at 120-121).

This last proposition is illustrated by Hughes. In that case injury by burning, which was foreseeable, was caused not by fire, which was also foreseeable, but by explosion, which was not. The injured plaintiff recovered nevertheless. Lord Reid said (at 847):

This accident was caused by a known source of danger, but caused in a way which could not have been foreseen, and, in my judgment affords no defence.

In Nader the defendant was held liable for the hysterical reaction (known as the Ganser Syndrome) which supervened on moderate injuries suffered by the 10 year old plaintiff precipitated by his parents' overly protective concern over his injuries. The accident was held by the majority (Samuels JA and McHugh JA) to have been a legal cause of the reaction because it materially contributed to the onset and continuation of the condition. Those two judges then addressed remoteness. Each held that it was sufficient that psychiatric illness of some kind was reasonably foreseeable as a consequence of the physical injury. It did not matter that the particular psychiatric illness was of rare occurrence and uncertain aetiology. McHugh JA indicated (at 536-7) he would also have found in the plaintiff's favour on an independent ground, namely the principle that a defendant takes the plaintiff as he finds him. His Honour applied this principle to the particular psychological and familial situation of the injured plaintiff. "I think that the defendant must take the plaintiff with all his weaknesses, beliefs and reactions as well as his capacities and attributes, physical, social and economic. If the result of an accident is that a ten year old boy reacts to his parents' concern over his injuries and develops an hysterical condition, no reason of justice, morality or entrenched principle appears to me to prevent his recovery of compensation (at 537).

The principle that a tortfeasor takes the victim as he or she is found is not absolute and unqualified. However, I see no reason why the appellant should not take the respondent in the family and cultural setting that she lived (cf Nader at 537). Equality before the law puts a heavy onus on the person who would argue that the "unusual" reaction of an injured plaintiff should be disregarded because a minority religious or cultural situation may not have been foreseeable (cf generally Calabresi, Ideals, Beliefs, Attitudes and the Law (1985)). Whether or not the husband's response (with its consequences) was consistent with his marital obligations (and I am not inferring a judgment either way), the unchallenged evidence showed that it was a direct response to the hair-cutting.

At one stage the Imam was asked what sort of reaction he would expect from an Islamic husband if his wife cut her hair without first seeking his permission. He said:

It's quite shocking and, I mean, sometimes it can nullify their marriage or finish their married life or, as you say, sleep in another room or he can be that angry.

He said that this would be an expected, indeed well-known reaction in the Islamic community (AB 116). The question whether such a reaction was actually foreseeable to a Burwood shopkeeper might ultimately depend on demographic evidence, but I shall not extend an already lengthy judgment with speculation on this account, because I consider that the matter can be determined in the respondent's favour without addressing this alternative possibility.

In any event, the possibility that a person will desert a partner who has been disfigured in the eyes of the deserter is sufficiently commonplace to be foreseeable. There is older authority, noted in Luntz, Assessment of Damages 3rd ed para 2.7.5, which would deny pain and suffering damages in respect of marriage breakdown. However the more recent case law allows recovery in those circumstances. The authorities are discussed in an enlightening judgment of Ashley J in Encev v Encev (Supreme Court of Victoria, unreported, 24 November 1997). His Honour refers to Hird v Gibson [1974] Qd R 14 (Qld FC); Namala v Northern Territory [1996] NTSC 29; (1996) 131 FLR 468 and Rose v Chang-Sup Kwow (ACT Supreme Court, Miles CJ, June 1996, unreported).

In Hird, Williams J emphasised the need (post Wagon Mound) to show that the desertion by the husband of the injured plaintiff was a reasonably foreseeable consequence of the accident. However, his Honour pointed out that it was not necessary that the defendant should have foreseen the precise nature of the consequences. It was sufficient that he should have foreseen consequences of the same general character as that which followed. In Encev this analysis was adopted by Ashley J. I would respectfully do likewise. I would add that the law should, in this area, take "human nature as it is, with its infirmities, and having regard to the relationship of the parties concerned" (per Lord Wensleydale in Lynch v Knight [1861] EngR 822; (1861) 9 HLC 577 at 600[1861] EngR 822; , 11 ER 854 at 863). Often in personal injury cases evidence is led that injury has led to strains in marital or other domestic relationships. That evidence is treated as part of the pain and suffering and loss of enjoyment of life which is compensable by general damages. Loss of libido (and the flow-on effects) is a well-established element of compensable damage.

The same principles apply a fortiori when physical injuries lead not just to pain and discomfort but to psychiatric injuries. Handley JA and Beazley JA pointed out in McLean (at 407) that:

In personal injury cases where psychiatric injuries supervene on physical injuries, it is taken for granted that the plaintiff can recover, but this may be because defendants accept that supervening psychiatric injuries are reasonably foreseeable.

During argument in the appeal, senior counsel for the appellant accepted that the respondent's depression was a natural reaction of a woman whose marriage had disintegrated following trauma (Tr 48). In the present case the respondent's psychiatric injuries were foreseeable and the award of general damages should have taken them into account. It was perfectly foreseeable that a severe and continuing shoulder injury would affect a plaintiff's capacity to attend to matters of personal hygiene and adornment, particularly in a context where she was a home maker. And it was equally foreseeable that this would put strain on marital relations, as it certainly did in the months prior to the hair cutting incident. That such strain might lead to a severe breakdown of that marital relationship with extreme psychiatric consequences for a vulnerable plaintiff was also foreseeable. The fact that the breakdown occurred in consequence of a perhaps unforeseeable step taken by the respondent (cutting her hair) or the perhaps unforeseeable reaction of her husband is irrelevant in the light of cases such as Hughes and Nader, so long as psychiatric injury is itself regarded as a foreseeable consequence of the physical injury inflicted on the respondent (see McLean). Contributory negligence was not pleaded.

Accordingly, I would uphold the cross-appeal on this ground. The parties were agreed that this Court should endeavour to assess damages if minded to uphold the cross-appeal.

General damages should be reassessed to include the distress, illness and suffering inherent in the psychiatric breakdown. I would accept the cross-appellant's submission that her past general damages to the date of judgment below should be increased from $40,000 to $50,000, with a consequential increase of interest thereon from $2,000 to $2,500.

I would increase the award for future damages from $10,000 to $30,000.

Very late in the hearing before us, senior counsel for the respondent, sought leave to amend the cross-appeal to include a claim for interest on past loss of earnings. The application was not opposed nor was anything said in opposition to the relief sought. Counsel were agreed that the arithmetical sum involved was $2,000 which is 2.5 years at 8% per annum on the $10,000 awarded for past economic loss at trial (Tr p70).

On this basis the award should be increased by $34,500 to $265,691, noting that $4,500 thereof represents pre-judgment interest.

Has the Court power to enter a verdict in excess of $250,000 (plus interest)?

The respondent instituted these proceedings in the District Court in 1995. At all material times prior to the day on which judgment was announced below the relevant jurisdictional limit of the District Court was $250,000 (District Court Act 1973, s44(1)(a)) and this was the sum claimed in the Statement of Claim. Interest was also claimed, but it is to be disregarded for this purpose (District Court Act 1973, s44(2)). Section 51 of the District Court Act enabled the parties to agree to waive the monetary limit (by signing a Memorandum of Consent). Failing agreement, a party could move the Supreme Court to transfer proceedings to that Court. Proceedings could be removed at any stage, but the jurisdiction to do so is discretionary and there is authority indicating that the Supreme Court would be unlikely to remove a part-heard matter (see Kadic v Thiess Bros Pty Limited (1967) 67 SR(NSW) 411 at 414).

On 5 June 1997 the respondent's solicitor sought the appellant's consent to waiver of the $250,000 jurisdictional limit. A Memorandum of Consent was forwarded. The letter indicated that if consent was not forthcoming then the respondent would be "making an application before the court on the day for extension of jurisdiction". This request was ignored by the appellant's solicitor. No Memorandum of Consent was signed. Perhaps because the threatened application to apply to the District Court was misconceived, perhaps for other reasons, the matter was taken no further by the respondent.

The matter came to trial on 3 July 1997. The trial continued on 4, 8 and 9 July. On the lastmentioned day the proceedings were, according to the transcript, adjourned to a date to be fixed. I read this in its context as indicating that judgment stood reserved, because the evidence appears to have closed and there had been full submissions.

The District Court Amendment Act 1997 (No 58 of 1997) received assent on 2 July 1997, ie on the eve of the first day of the trial. But its relevant part did not commence until 18 July 1997, which turned out to be the day on which judgment was announced. The Act amended s44(1)(a) by lifting the jurisdictional limit for a personal action at law (other than a motor accident claim) from $250,000 to $750,000. There was a transitional provision stipulating that s44 as amended extended to any cause of action that accrued before the section was amended (see District Court Act 1973, Schedule 3, cl 3).

Bard ADCJ handed down her reasons on 18 July 1997. Her Honour announced that she made the following orders:

1. Verdict and judgment in favour of the plaintiff for $233,191.10.

Discussion then ensued re costs. It is obvious that a Calderbank offer had been made by the plaintiff on or about 2 October 1996, such offer being in a sum less than the verdict awarded. I infer this from the fact that her Honour amended the costs order, awarding the plaintiff indemnity costs from 2 October 1996. Her Honour gave reasons why the defendant had in its possession sufficient information with which to have assessed the potential of the claim that was then on foot (see AB 370).

The effect of the amendment which commenced on the day her Honour announced reasons and made final orders was that, had her reasons led to a judgment in the plaintiff's favour (excluding interest) higher than $250,000, then such a judgment could have been given so long as it did not exceed $750,000; or if it did, then it could have been made in the sum of $750,000 being the extended jurisdictional limit. The consequence is that, if this Court finds that her Honour erred and is minded to substitute a sum higher than that awarded, but less than $750,000, then it is open to this Court to do so. Our jurisdiction under the Supreme Court Act 1970 extends to making any order which ought to have been made at trial and such further or other order as the case may require (Supreme Court Act, s75A). Compare Quilters v Mapelson (1882) 9 QBD 672 CA. It is irrelevant that it may not have occurred to the respondent's legal advisers on 18 July 1997 to have invoked the amendment that had only come into force that day had it been the case that Bard ADCJ had announced reasons that led to an assessment of damages exceeding $250,000.

There still remains the need to allow the statement of claim to be amended, as a prelude to entering judgment for a sum higher than $250,000 (excluding interest). It is well established that the Court retains power to grant such an amendment even after the announcement of a verdict by judge or jury. However, there remains a discretion, and one which could be withheld if it were the case that the appellant/defendant had conducted his case in a particular way that would make it inequitable to allow the amendment after verdict.

Senior counsel for the appellant indicated that he would wish to have the opportunity to tender evidence if and when it became necessary to address this point. He indicated that the type of evidence that he would wish to have the opportunity to call is evidence that would go to the question of what settlement discussions transpired between the parties and what was the state of the correspondence relating to the plaintiff's proposal to either have extended jurisdiction or make an application for the removal of the proceedings to the Supreme Court before trial. A third category of possible evidence that was foreshadowed related to the fact that the respondent had made an offer of compromise in 1996 which was in a sum that was lower than that awarded to her by the trial judge.

I find it hard to see how the to-ing and fro-ing between parties long before trial in relation to Calderbank offers or rejected settlement proposals or the threats to seek removal of the proceedings into the Supreme Court could have any bearing on this issue of amendment. And I would take some convincing that the legal advisers ever turned their minds to the possible amendment to s44, let alone charted their course accordingly.

There was discussion before us about the possibility of remitting the matter to the District Court for this purpose. However, I think it would be better if this Court disposed of the matter in the light of such further evidence as the parties may place before it in relation to the exercise of the discretion to amend the Statement of Claim. It is conceivable that the appellant will not oppose the amendment upon considering how little is at issue, and the substantial costs of a further hearing.

I propose the following orders (in addition to those made during the hearing dismissing the appeal with costs);

Court Amendment Act 1997

Kavanagh v Akhtar Matter No Ca 40492/97 [1998] NSWSC 779

At a glance

Court

Decision date

Before

Catchwords

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Catchwords

Judgment (128 paragraphs)

Kavanagh v Akhtar Matter No Ca 40492/97 [1998] NSWSC 779 (23 December 1998)

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Legislation Cited (6)

Cases Cited (9)