Maviglia v Maviglia

Court of Appeal (NSW)|1999-06-15|Before: Mason P, Fitzgerald JA

New South Wales Court of Appeal CITATION : Maviglia v Maviglia [1999] NSWCA 188 FILE NUMBER(S) : CA 40729/97 HEARING DATE(S) : 03/06/99 JUDGMENT DATE : 15 June 1999

PARTIES : Salvatore Maviglia v Domenica Maviglia JUDGMENT OF : Mason P at 1; Fitzgerald JA at 3

COUNSEL : H G Shore (Appellant) M S Jacobs QC/A Kostopoulos (Respondent) SOLICITORS : Sparke Helmore (Appellant) Daniel Svir (Respondent) CATCHWORDS : Personal injury; motor vehicle accident; injuries obscured by subsequent events; inappropriate use of acceptance of respondent's credit ; retrial ordered. DECISION : Appeal allowed

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA40729/97 DC 4386/94 MASON P FITZGERALD JA

1 MASON P: An ex tempore judgment should not be picked over. And appropriate allowance should be given for the pressures under which judges of the District Court are placed by the volume of cases coming before them. I also recognise that matters of causation are impressionistic where multiple causes contribute to a "final" position. (Here they included the respondent's pre-accident degenerative spinal condition, the impact of the accident involving the appellant's negligence, the death of Santarno and the impact of the later accident due to the respondent's own negligence.) 2 This said, I agree with Fitzgerald JA that there must be a new trial as to damages. I agree with Fitzgerald JA's reasons. 3 FITZGERALD JA: On 31 August 1991, shortly before her 49th birthday, the respondent was injured when a motor vehicle in which she was a passenger was involved in an accident. She sued the appellant in the District Court for damages for negligence. Liability was admitted. On 3 October 1997, when the respondent was aged 55 years, she was awarded damages of $315,000 and her costs. By this appeal, the appellant requests an order that damages be retried or reassessed by this Court. 4 The components of the respondent's award of $315,000 damages were as follows: (a) Non-economic loss limited in accordance with s79 of the Motor Accidents Act 1988 and calculated on the basis that the severity of the respondent's non-economic loss is 44% of a most extreme case - $110,000; (b) Past economic loss - $ 53,000; (c) Future economic loss - $ 50,000; (d) Out of pocket expenses - $ 11,000; (e) Future medication - $ 5,000; (f) Future medical treatment - $ 3,000; (g) Loss of business - $ 8,000; (h) "Griffiths v Kerkemeyer" - $75,000." 5 The respondent accepts that the award of $8000 for loss of business should be deducted, but contends that the appeal should otherwise be dismissed and that the appellant should be ordered to pay 95% of her costs. 6 The appellant accepts that the respondent is entitled to the sum of $11,000 awarded to her for out of pocket expenses, but contends that the respondent's non-economic loss should be calculated on the basis of 20% of a most extreme case and reduced to $29,500, that past economic loss should be reduced to $7,500, and that each of the other components of the respondent's award should be reduced to nil. 7 Specific issues were raised by the appellant in relation to a number of the heads of damage for which the judgment below compensated the respondent; for example, her pre-trial economic loss and her lost earning capacity. 8 The respondent and her husband had five children and two businesses in which they were equal partners at the time when she was injured. One business was a pizza outlet which they had acquired in 1986. The other was a "family restaurant" acquired in 1987. The respondent worked in the "family restaurant". Her duties involved the preparation of food, including cooking, and she worked long hours for about $200/week. The trial judge found that she had only a "limited" prospect of other employment "[b]ecause of her limited literacy in English". The respondent had never had paid employment until she and her husband acquired the "family restaurant", and had no realistic possibility of paid work other than in a food outlet owned and conducted by her family. Unless there was a business such as the "family restaurant" available to provide the respondent with paid work, her earning capacity was negligible irrespective of her injuries in the accident. 9 The respondent did not return to work after the accident, and the "family restaurant" was sold in December 1992. The respondent persuaded the trial judge that the sale was necessitated by her injuries in the accident and that, but for her injuries, she would have worked until she was 65. There were considerable objections to such a conclusion. 10 The respondent had suffered for some years from diabetes for which she took medication, and had a degenerative spinal condition. Her husband had heart problems which required an angioplasty in 1991. On 12 August 1992, the respondent's fourth child, a 21 year old son, Santarno, was killed in another motor vehicle accident. 11 Another son, Tony, who had managed the pizza outlet, went to Italy to live after Santarno's death. At least after Tony's departure, another son, Bruno sometimes worked in the pizza outlet. Although the respondent's husband also worked in the pizza outlet sometimes, he more usually worked at the "family restaurant". His and the respondent's other children also sometimes worked in the "family restaurant", but also sought to pursue their own interests. The lease of the "family restaurant", which was to expire in May 1993, did not contain a renewal option. The family decision to sell the "family restaurant", resulting in the termination of the respondent's only real work opportunity, was plainly influenced by a variety of factors. These matters are inadequately discussed in the judgment under appeal. 12 It is unnecessary to say more on that topic, except that it exemplifies a fundamental problem with the judgment under appeal; namely, its failure to sufficiently expose the reasoning process which produced the outcome of which the appellant complains. Another illustration of this is to be found in a critical passage in the judgment in which the trial judge held that the respondent's evidence was credible and reliable. 13 His Honour said: "The question of the credit of a witness of course, in a case like this where there is a situation where the parties stand at opposite ends of quite a wide spectrum, is always a difficult matter and inevitably the attacks on the credit are sought to be derived from inferential matters from doctors' reports, what is not told to doctors, the approach of the doctors and so on. At the end of the day however one has to do one's best by observing the witnesses and looking at surrounding material, giving it appropriate weight in all the circumstances. The situation is not made any easier in this case because of the complication - and by use of a word so clinical as that I do not any way seek to underestimate the significance of the matter - the complication of the death of the son in circumstances where the family was obviously a very close knit family and a great deal of grief was caused to the [respondent] as the mother by the death of a son at twenty-one years of age. These are matters which I have given careful consideration to and considered very carefully the considered submissions on behalf of the [appellant] who submitted to the Court, that the [respondent] should not be accepted as a witness of credit. … In my view the [respondent], in giving her evidence, was attempting to assist the Court. She obviously was not an unintelligent person but she was also a person who, for want of a better word, was very deferential and unforthcoming. It is not surprising to me that she may not have given full and detailed information to all of the doctors because of her passive situation approach and particularly because there is no doubt that both the 1991 accident and the death of the son had a significant effect on her, at least in psychological terms. It may be that she was exaggerating to an extent in one particular sense and that was in relation to minimising the effect of her son's death on her. I have little doubt that that death had a significant effect at the time and probably still does but I should make it clear I do not consider that in doing this she was attempting to mislead the Court. More likely than not this "minimisation" was part of a coping mechanism (I am not using that phrase in any technical sense) that she has developed in relation to this event which was a very tragic one for her. As to the daughter, Tina, I also accept her evidence. It was clear that she dearly loved her mother and was very protective of her but I do not consider that that affected her evidence or her assistance to the Court."

A mere assurance that all relevant matters have been appropriately considered does not discharge the judicial obligation to expose the reasoning process adopted, and the explanation given by the trial judge for his acceptance of the respondent's evidence was quite inadequate in the circumstances of this case. 14 The nature and extent of the respondent's injuries from the accident were obscured by subsequent events, and considerable care was needed in the dissection and analysis of the evidence. The trial judge was distracted from that duty by his enthusiastic acceptance of the respondent as a credible and reliable witness. There was a body of evidence which impeached the respondent's testimony which was not adequately dealt with by his Honour, who, instead of utilising that evidence in his assessment of the respondent's evidence, used his acceptance of her evidence as a foundation for rejecting or discounting evidence which was inconsistent with her evidence. Once the trial judge accepted the respondent's evidence, other evidence needed to be accommodated to that view; for example, inconsistencies between the respondent's evidence and evidence of what she told doctors who examined her and their observations of her influenced his Honour's opinion concerning the medical evidence which he accepted. His Honour devised his own psychological theories, unsupported by any direct evidence, to try to explain some of these "inconsistencies"; e.g., he attributed some occasions in the period between Santarno's death and the respondent's settlement of her action for nervous shock when she did not attribute symptoms and problems to the presently material accident, or downplayed the connection, to a conclusion that the respondent was a "passive" person, whose "coping mechanism" in relation to her son's death included "minimisation" of the consequences of the injuries for which he awarded her damages. 15 Initially, the respondent's injuries from the accident did not appear to be major. Despite doubts expressed by at least one of the medical witnesses, the trial judge accepted the respondent's evidence that she was rendered unconscious for a brief period. She was an in-patient for one night at St Joseph's Hospital. The hospital notes record no complaint of shoulder or low back pain, and x-rays revealed no damage to her spine. After her release from hospital on the day following the accident, she consulted an unnamed general practitioner, who did not provide a report or give evidence. About 11 days later, on 11 September 1991, she consulted her local doctor, Dr Martino. Between that date and the date of Santarno's death, she visited Dr Martino on at least 14 occasions, and on his recommendation consulted a neurologist, a cardiologist and an orthopaedist and received physiotherapy until she found it too painful. Speaking of this period, the trial judge said that the respondent had, amongst other things, "pain in the right side of the face and pain right down to the jaw, pain in the ribs, right shoulder, lower back, right leg, and from the center of the low back down the buttocks and the right leg". 16 Even accepting that to be so, subsequent events had to be considered in determining the connection between the accident and the respondent's condition after Santarno's death. Understandably, the respondent was deeply distressed by her son's death. She sued for nervous shock and associated depression and grief, using a different firm of solicitors from those who appear for her in this proceeding. Her other action was settled, on terms which were not disclosed in evidence. The appellant is understandably anxious, and entitled, Boncristiano v Lohmann (1998) 4 VR 82, 89. to ensure that the damages awarded to the respondent for the accident to which this proceeding relates compensate her only for the consequences of that accident. 17 Secondly, in February 1993, on the first occasion when she drove a motor vehicle after the subject accident and the death of Santarno, the respondent caused another accident. The trial judge accepted her evidence that she was not physically injured in that accident, but held that it "probably did have an emotional or psychological effect on her", and "scared and depressed her". Even on the basis adopted by the trial judge, the "psychological effect" of the accident which the respondent caused in February 1993 introduced another complication into the determination of which of the respondent's ongoing problems were caused by the accident to which this proceeding relates. 18 While the trial judge was aware of these complications, his discussion of them was distorted by his threshold conclusion that the respondent's evidence was credible and reliable. 19 The trial judge described the respondent's injuries in two passages in his judgment. One passage, which preceded his discussion of the medical evidence, contained the passage quoted at the end of paragraph 13 Above. and continued: "…she continued to see Dr Martino because of pain. He gave her tablets. She was sent for physiotherapy but because of her pain, which apparently was exacerbated by the physiotherapy, she had to stop. She also indicated that Dr Martino sent her to a lot of specialists. For example: Dr Giblin, an orthopaedist; Dr Griffith, a neurologist; and Dr Day, a physician. She was also sent for a CA scan of the low back and continued under Dr Martino's care. The treatment she now receives has also involved physiotherapy but again she has had trouble carrying on with the treatment because of pain and takes tablets, including Serepax, and again in an almost wistful way she referred to her taking so many tablets. She also gave evidence that she has spent some $14 to $15 per week on tablets, some for depression, but couldn't recall how much the depression tablets cost. Her condition now includes headaches when out in the sun, pins and needles or paraesthesia in the area of the face, a pulling sensation there and sometimes pains like a hammer (presumably the sensation of a hammer being used on her) and on occasions when she touches the right side of her face and sometimes has no sensation and sometimes pain. She also gave evidence that on occasions when she is out in the open and there is wind on her face she does not feel the normal sensation that one would feel from the wind. As to her neck sometimes she has a feeling of improvement of pain in that area, sometimes it is very bad in terms of pain or painfulness. Again with moving her head on her neck, as it were, she sometimes feels pain on movement. Again with her right shoulder on occasions she has the ability to move but on other occasions pain. As to the side of her face she has pain radiating down into her shoulder area. As to raising her right arm or particularly her right arm, again she demonstrated in the witness box some difficulties in that regard. She is right handed and gave evidence that she had difficulty keeping her arm raised for any period of time and it varies from day to day as to whether she can keep the arm raised. I think I indicated she was right handed but notwithstanding that the grip and power in her right hand is less than that in her left hand. The fractured right rib has largely cleared up but she still has the pain in the centre of her low back and pain in the right leg. Again that depends on the weather but on occasions she has a loss of sensation in the right leg. The feeling as she described it, was that it was a feeling it was blocked. She also indicated that she had a degree of depression stemming back to this accident and she gave evidence that that was even before the death of her son. She said she felt depressed because she could not do what she used to do and it was too soon, as I apprehend that reference that was before the son's death, to feel better. As to the death of her son she said for the first two years she did not feel she could go on but since that time she copes with his death. She accepts that her son is in God's hands and that makes her feel better and she thinks of her husband and the other children and that she still has depression because she cannot do the things she wants to do. She also gave evidence that her diabetes is under control from the medication she takes. 20 After reference to some of the medical evidence, his Honour said: "I will refer in a moment to the psychological and some of the psychosomatic material but it may be convenient at this stage to make some findings on the injuries suffered by the respondent and her continuing situation … … I find that the mechanics of the injuries that occurred to the plaintiff in the subject motor vehicle accident were such that she was subjected to violent forces in the accident. Those forces were quite severe and I take into account the medical evidence I have relied on, also the photographs and the nature of the accident. Of course the force was not only that of the actual collision with the first motor vehicle but also the propulsion of the defendant's motor vehicle across the intersection in a diagonal manner and the flip of the motor vehicle onto the third motor vehicle. I find that the plaintiff was knocked unconscious and that more probably than not she was left dangling in her seat belt with her head or neck in an abnormal position and that she sustained severe force injuries to the right side of her body and I find that she sustained the following injuries. Firstly, a right-sided facial nerve lesion of the trigeminal nerve. Secondly, a disc lesion of C5/6 with protrusion posteriorly and to the right. Significant right shoulder injuries which by the subsequent MRI examination has been shown to be peritendinitis. Fourthly, a fractured right rib. Fifthly, low back disc lesion at L4/5 posteriorly. Sixthly, disc lesion at L5/S1. I also find that the condition of her face and in part the neck area are related to the nerve lesion. I also make findings as to her present disabilities. In reliance upon Dr Endrey-Walker's (sic) report of 1 April 1997. Without repeating those matters they are the matters set out under the heading "opinion" on pages 3 to 4."

Earlier, his Honour had said: "In similar terms are the reports of Dr Peter Endrey-Walder of 5 June 1995, 3 February 1997 and 1 April 1997. It is sufficient for present purposes to refer to the last of those reports which sets out at pages 3 to 4 his opinion. He notes that the plaintiff has remained significantly symptomatic from a physical point of view and has remained under psychological and psychiatric care since she was first assessed by him some two years ago. In referring to recent radiological investigations of an MRI scan there is confirmation of a significant physical basis for her symptoms in the neck and at the right shoulder joint and to paraphrase, he is of the opinion that there has not been any improvement in the trigeminal neuralgia which is probably contributing a great deal both to her physical symptomatology and psychological state. He then refers to some soft tissue wasting in the palm of her right hand and suggests some further studies to be undertaken. He concludes that the plaintiff remains with a thirty per cent permanent impairment of the neck and a twenty-five per cent permanent impairment of the back. It is further likely that fear of aggravating herself would contribute to some extent to her display of quite marked functional impairment, he continues: "She does have some quite significant rotator cuff symptomatology at the right shoulder to which some nerve route irritation from the neck may also contribute. I feel it would be more reasonable today to apportion a thirty per cent permanent loss of efficient use of the right arm at or above the elbow than the fifteen per cent which was previously found. She has remained with radiation of pain into her right leg and I believe that she remains with a ten percent permanent loss of efficient use of the right lower limb at or above the knee."" 21 In his discussion of other medical evidence, his Honour said: " I now turn to the medical evidence. The medical evidence that find most useful and the medical evidence I prefer is that of the following doctors or psychologists. Dr Martino, including his medical records … ; Dr Griffith, the treating neurologist; Dr Endrey-Walder; Mr Garofali and Mr Taylor, consulting psychologists; and to a lesser extent Dr Giblin, the treating orthopaedist. Perhaps I should indicate why I prefer their evidence to some of the other evidence given and I will attempt to do that briefly…." 22 The evidence of Dr Wilcox was rejected for a number of reasons, including his "… very adverse view of the [respondent] or her credit and that is not a view I share". His Honour said that he had "a similar view" as to [the] evidence" of Dr Mellick. However, other matters, unrelated to the respondent's credit, also influenced a more important role in his Honour's rejection of the evidence of Dr Wilcox and Dr Mellick. 23 His Honour "did derive some assistance from Dr Maguire". He accepted Dr Maguire's evidence that the respondent had some "initial depressive symptoms" after the presently material motor accident but rejected Dr Maguire's opinion "that this distress was greatly overshadowed by her emotional reaction to the death of her son in 1992". 24 The opinion of Dr J Kevin, an ophthalmologist, to the effect that the respondent's "… eye problems … do not appear to be related to the accident" was also rejected. His Honour said "I assume that one of the reasons that was provided was lack of complaint or lack of persisting symptoms. In the light of what is in other reports, including the GP Dr Martino, I do not put any weight on [Dr Kevin's] report in that respect. It merely confirms my view of the [respondent] that she tends to be a little stoic, at the risk of understatement, and perhaps to use an old-fashioned term, is a person who knows her place, and is rather passive in her own way. I suppose one could also take the view that if one goes to an eye doctor one is seeking treatment for glasses or for one's eyesight or something of that kind. Now that may not necessarily be a correct view of approach to take with a person such as Dr Kevin, but it may not be surprising that a person like the plaintiff would approach the matter in that way." 25 In his "survey" of the medical evidence (with interposed comments), the trial judge next turned to the opinions of two psychologists, Mr Garofali and Mr Taylor and said: "I accept Mr Garofali's evidence that she is suffering from a significant pain complaint, that it is related to the accident and it may be that she was not referred for specific pain treatment of the kind offered by Mr Garofali until after the son's death. See for example, page 5.2 of his report of 15 August. He, of course, relates that to various matters including the trigeminal neuropathy and he does however mention heightened sensitivity predisposing her to the effects of prolonged bereavement following the death of her son, Santarno. I also note that in the [respondent's] medicals there is also a report from the same psychologist, I think a later one than the one I have just referred to, this one of 22 November 1995. In that he concludes that the loss of her son, Santarno, on 14 September 1994 (as said) has sensitised her to the effects of stress, depression and pain. In addition, failure to provide her with appropriate intervention earlier has contributed to the development of chronic pain syndrome. As I read his opinion he does indicate significant pain resulting from this motor vehicle accident but does go on to indicate that further sensitisation of some significance has resulted from the loss of her son and failure to provide her appropriate intervention earlier. Mr Taylor, in his report of 4 October last year, finds that she is suffering from an anxiety disorder with some symptoms of depression also being present. I am looking at pages 7 and following of his report of that date. She is continuing to suffer from a grief reaction associated with the death of her son which is adding to the symptoms of depression which have arisen in response to the effects of her motor vehicle accident. He does however, find her emotional health has been affected by the significant grief reaction due to the death of her son but that as a result of the motor vehicle accident in 1991 she suffered from a considerably anxiety disorder and has also have symptoms of depression. The anxiety disorder is still present. He relates both matters to symptoms of anxiety but finds a prognosis favourable for the resolution of current emotional difficulties but partially dependant on her ability to resume her prior lifestyle. So we see here, and I accept the evidence of both Mr Garofali and Mr Taylor, that there is an interrelationship between her physical situation and her mental state but the mental state is itself complicated by the son's death. I do not really read, although I rely upon it, the reports of the psychiatrist Dr Elsa Bernadi as being to a significantly different effect. She does diagnose major depression and does refer significantly to the precipitant being the 1991 motor vehicle accident but does, of course, relate that in turn to the son's death. In my view, as well as the physical disabilities suffered by the [respondent], there were some psychological distresses and pain occasioned by the 1991 incident. It is quite clear however that the son's death significantly complicated that matter but her capacity for healing in that psychological sense depends significantly on her ability physically to return to her previous life and lifestyle which is not seriously possible because of those physical disabilities. It seems to me that the effect of that is that in assessing damages I have got to exclude from consideration the significant further psychological stress and perhaps psychiatric stress suffered by the son's death and at least discount to some reasonable extent the complications of that upon her physical state but there is no difficulty in making a finding that her inability to do her domestic work and to return to her pre-injury employment was caused by this accident and I so find. I should before I leave the medical material, refer to the report of Dr Siegal which was tendered by the [respondent] as exhibit 5. It seems clear from that report which was dated 20 July 1993, less than a year, as I recall it, after the son's death. It is regrettable that she did not advise Dr Siegal of this motor vehicle accident. In view of the significant tragedy that occurred to the plaintiff however by the son's death it may not in some respects be surprising that at this time the major matter in the plaintiff's life was that death and this accident had diminished is importance to her but having made findings as to the physical consequences of the present accident it is quite clear that one must discount the findings of Dr Siegal. He fund in the last paragraph: "It is obvious that [the respondent's] psychological grief response is a direct result of the death of her son. Furthermore her inability to carry out her normal household duties and inability to work in the family business is a direct result of the loss of her son at the time of the accident." Although I have to, and have indicated that I will, take into account the psychological or pathological grief response, to use Dr Segal's words, of the death of her son in assessing damages, I do not find that her inability to carry out normal household duties and inability to work in the family business is a direct result of the loss of her son but rather a direct result of this accident." 26 After reference to "the question of the costs of pain management or treatment for pain management provided by Mr Garofali", which he described as a "difficult and complicated area because of the interrelationship" between the presently material accident and the death of the respondent's son, Santarno, his Honour said: "In my view a great deal, by far the majority of pain therapy, was required because of the physical consequences of this accident. There is no doubt however that the son's death was a complicating and interrelated factor. … doing the best I can I estimate something in the order of 80% of the requirement for such treatment was caused by this accident but I hasten to add that that is obviously a very round figure and approximate." 27 The "next complication" was "the question of the sale of the business", which his Honour considered "… overall … a minor component", despite amounts which he later awarded for economic loss. His Honour said: "… I find that the sale was forced by the present accident, that the business depended upon the [respondent's] skill as a cook and food preparer and it is also relevant to note when one bears in mind the estimates of wages or profits she took out of the business, which depending on which view one takes varies between $164 and $200 per week, that the viability of the business depended upon having someone like a close family member doing this work. One could not have got a cook (in the sense of an employee) who keep even a small business going working six days a week for money or wages at that level. True it is her daughter filled the gap for a period of sixteen months but not surprisingly, and I must say this has the ring of not only truth but also what one would expect, that she was not as good a cook as her mother." 28 After mention of the respondent's daughter's youth and desire for "some kind of social life which was inconsistent with working the kind of hours required to fill her mother's place", his Honour continued: "When one takes all those matters into account, it was only a matter of time, so long as the [respondent] could not return to her pre-injury work before the business would either fail or be sold. There seems little doubt that the timing of the sale, rather than the cause of the sale was affected by the son's death… the son's death was … the last straw. In my view the son's death only affected the timing of when the sale actually occurred. But for that it might not have occurred for a short time later but the real cause of the sale of the business at or about the time it occurred was the [respondent's] injuries…" 29 After noting conflicting reports between experts called by the respective parties, his Honour allowed $8000 "for … the loss on the sale of the business …". As stated earlier, the respondent does not seek to sustain that part of the judgment. 30 The next subject dealt with was "loss of wages and loss of earning capacity". His Honour observed that "the experts are not really far away on this issue. The [appellant's] expert puts the amount at between $164 to $196 per week net whereas the [respondent's] expert puts the figure at $200 per week". His Honour then expressed the opinion that he "should err on the conservative side", and that the appropriate amount to allow, both for loss of wages and for loss of earning capacity, was a figure in the order of $170 per week. That resulted in an award of $53,000 for past economic loss. On the basis of his acceptance of the respondent's evidence that "she intended to work until aged 65", and "his opinion that she may have some small but very small earning capacity on the open labour market", his Honour determined that it was "probably appropriate to make a greater estimate for contingencies", "particularly in the light of the son's death and the effect on her", and that "a figure in the order of $50,000 is appropriate". The appellant's submission that "only … a buffer should be allowed for future economic loss" was rejected because of the trial judge's "different approach … to questions of causation and the injuries of the [respondent]". 31 The respondent claimed $6,664 for medication for the next twenty years ($10 per week) and $4612 for visits to her general partitioner and physiotherapist "at say $30 per visit once a month …". His Honour again expressed the opinion that "some greater discount for contingencies and uncertainty should be allowed" and these matters should be valued on a conservative basis. Accordingly, he awarded $5000 for medication and $3000 for visits to the doctor, adding: "Implicit in what I have said is also attempting to make some allowance as was conceded by the [respondent] in her counsel's calculation for depression tablets and the like related to the son's death" 32 When considering respondent's "Griffith v Kerekmeyer" claim, his Honour accepted her evidence that she was unable to do her normal household duties after the accident to which this proceeding relates and that she required assistance from her daughter and her husband. Because of the respondent's husband's heart problems, her daughter's assistance had had to increase. His Honour continued: "Again I consider that I should take a conservative approach in relation to this matter because of questions of contingencies, the complications of the son's death and the effect on the [respondent] of that and the difficulty of people even doing their best to make an estimate of the amount of assistance actually being rendered or required. Notwithstanding my view that the amount has probably changed from time to time depending on the father's health I do not intend to vary the amount which is appropriate. I think it is also probably appropriate to allow for contingencies on a relatively generous basis. I find that the services required to be provided because of the injuries suffered in this accident. The claim here is on the basis of two hours a day, that is fourteen hours per week less the six hours where that was relevant, on the basis of $14 per hour so the claim for past damages under Griffiths v Kerkemeyer was $32,032 and for future, adopting a twenty years amount on a multiplier of 666.4, again on a figure of $112 is $74,636. … as I recall it there was a difference between the mother and the daughter's estimates. I think the mother was more likely to be accurate on this matter but it is also relevant to take into account that some of the work done by the daughter was done for the husband and other children in the house and that has to be taken into account. … I find that the amount of assistance required was in the order of one and a half to two hours per day, probably somewhere in that range, but for the various reasons I have given, including the work done for others, it is appropriate to adjust those figures downwards. The total claimed is $106,668. In my view the appropriate approach is to allow an overall figure on a reduced basis for the total Griffiths v Kerkemeyer claim and I allow $75,000." 33 Finally, his Honour dealt with the "question of non-economic loss under s79 of the Motor Vehicles Act". His Honour : "The claims in this regard were … on the part of the [respondent] 55% something in the order of $135,850 and the [appellant] submitted that it should be in the order of 15-18% … something in the order of $16,000 to $22,000."

The judgment continued: "I take into account all of the matters I have referred to : the pain and suffering that was occasioned to the [respondent] by the accident; the subsequent pain that has accrued to her; the psychological effect of the accident; but I accept that it has got to be significantly discounted for the pain and suffering caused by the son's death, which has not only had a psychological effect but has also had some effect to increase the pain and suffering. This is obviously a difficult task to take all those matters into account and also make some slight discount for the fear occasioned by the 1993 accident. It is also relevant to consider the [respondent's] age. She is fifty-five and that is a matter to be taken into account in assessing what the appropriate proportion of the most extreme case is. In all the circumstances … the appropriate amount is … in the order of forty-four per cent which according to the recent tables, is a figure of $110,000." 34 I have already mentioned the unsatisfactory explanation given by the trial judge for his unreserved acceptance of the respondent's evidence. A particularly telling criticism which the appellant made of his Honour's conclusion on that topic was that he paid insufficient attention to discrepancies between accounts which the respondent gave to doctors and other health professionals at different times, arguably for the different purposes of this proceeding and her action consequent upon Santarno's death. 35 Because I am of opinion that the issue of damages must be retried, it is preferable that I do not attempt a detailed discussion of the evidence and perhaps influence the attitude of the District Court judge who presides at a retrial in due course. It is sufficient for present purposes to mention a few clear instances of the trial judge's inappropriate use of his acceptance of the respondent's credit as a justification for disregarding evidence adverse to her or depriving that evidence of its impact. 36 Dr Griffiths, the neurologist to whom Dr Martino referred the respondent, first found her to be "significantly depressed" after Santarno's death. 37 Dr Martino first referred the respondent to a psychologist, Mr Garofali, after Santarno's death. 38 Dr Siegal, a psychiatrist to whom the respondent was referred by the solicitor acting for her in her claim for damages for nervous shock arising out of Santarno's death, was not told by her of the accident the subject of this proceeding but, on the contrary, was informed that, until Santarno's death, the respondent was "… a normal woman and mother of five …[who] enjoyed keeping house and cooking for her family". 39 Dr Maguire, who the respondent saw at the request of the insurer of the appellant whom she sued for damages for nervous shock following Santarnos' death, asked the respondent whether she had been involved in any prior accident and was told: "I don't remember" 40 Both Dr Wilcox and Dr Mellick gave evidence of their observations and examinations of the respondent which, to use Dr Wilcox's description, revealed "conscious, contrived, abnormal behaviour". 41 There is confusion in the trial judge's references at different points to organic or somatic bases for the same problems. Further it is at least doubtful whether his Honour correctly understood the limited significance of the MRS results or the fragility of Dr Endrey-Walder's view that the respondent's right shoulder complaint were caused by the accident to which this proceeding relates. His Honour demonstrated that and explained his reasoning. 42 The appeal must be allowed with costs, and, since this Court is not in a position to reassess damages, there must be a retrial. The respondent should have a certificate under the Suitors Fund Act if qualified.

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