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[2004] NSWCA 304
Court of Appeal (NSW)
2004-08-13
Sheller JA, Gzell J
Original judgment source is linked above.
Background facts 2 On 2 September 2000, at 4 am, the plaintiff tripped and fell on stairs at the premises where she lived which were owned and occupied by the defendant. As a result, she injured her ankle. At the time she was on her way to work as a dealer at the Star City Casino. Although the plaintiff was in considerable pain, she managed to drive to work. After working for about half an hour she found she could not stand any more and sought medical attention. Her ankle was swollen. She left work and went home. On the same day she saw her general practitioner, Dr Peter Blatchford, who practised at the Warringah Mall 24 Hour Medical Centre. Examination revealed soft tissue injury involving the lateral ligaments of the left ankle. X-rays of the ankle were performed and reported as normal. According to Dr Blatchford she was seen on 6 and 13 September 2000 and it was noted her condition was settling. However, on 25 September 2000 her left Achilles ligament was found to be involved and she was referred to Dr Steel for further management. A bone scan was ordered. On 5 October 2000, she saw Dr Blatchford and said she had been assessed by Dr Steel. It was agreed that Dr Steel would take over management of her injury. Her last consultation with Dr Blatchford was on 17 October 2000. 3 On 31 July 2001, at the request of her solicitors, the plaintiff was examined by Dr Patrick. Dr Patrick described the present symptoms as ongoing pain of the left ankle mainly laterally and referred to the inability of the plaintiff to wear all types of shoes. She was not able to run on the beach or walk distances along the beach. She was tentative about walking around the rocks. She could not play physical sport involving running or twisting/turning. Previously she had played basketball for Australia Under 16s. She described herself as still being fit but restricted significantly by the left ankle. She was able to swim and was training for a 111 km kayak paddle. Apart from this type of activity, recreation was mainly non-physical. Dr Patrick reported that there was local tenderness at the left ankle laterally, distal to lateral malleolus and in the antero-lateral gutter with the foot inverted. There was also tenderness to palpation over the distal medial malleolus. There was some 5 degrees loss of dorsi-flexion. Dr Patrick observed no undue swelling. In his opinion, the plaintiff had sustained significant ligamentous injury to the left ankle as a result of the fall. It was likely there had been some deltoid ligament strain medially, with development of some degree of post-traumatic synovitis at the ankle joint. Dr Patrick believed her continuing symptoms, as described, were genuine and consistent with the injuries sustained on 2 September 2000. 4 Dr Patrick re-examined the plaintiff on 30 October 2002. In his report he noted that her last day of work with Star City Casino was 28 June 2002 when she resigned. Dr Patrick observed: "She has been given good references however and she tells me they would take her back at any time. The main reason she resigned was to look after her mother for a period." 5 Dr Patrick noted the present symptoms as ongoing swelling intermittently about the lateral left ankle with some discomfort laterally at the left ankle. Dr Patrick stated that the plaintiff had never been able to return to basketball and did not involve herself in team games. She was on no regular medication. Physical examination revealed ongoing mild tenderness of the left ankle laterally, distal and anterior to lateral malleolus and in the antero-lateral gutter with the foot inverted. There was no undue swelling. There was no evidence of significant reflex sympathetic dystrophy. Dr Patrick was of opinion that the plaintiff did continue with ongoing symptoms at the left ankle but that surgical intervention was not likely to be indicated. Re-examination did not cause Dr Patrick significantly to alter the opinion expressed earlier. His assessment of impairment/loss of the left leg below the knee, including loss of use of the foot, was unchanged at 16 per cent. 6 At the request of her solicitors, the plaintiff saw Dr Cecil Cass, an orthopaedic surgeon, on 29 October 2002. Referring to the incident, Dr Cass said: "After twelve days [the plaintiff] was able to return to light duties at the Casino in the administration department where she could sit down. She was very good at administration work and rapidly became a very competent computer IT worker. She was made a permanent employee in administration and she worked in that position from December 2000 until 28 June 2002 when her mother was discharged from hospital. Miss Gray commenced full time caring work looking after her mother in her further physical improvement and progression to independence from medication. Miss Gray herself continued her regular programme of exercises including bicycle rides daily of 2 kms. Whilst there has been a steady improvement in the function of her left foot and ankle she still does find she has marked limitations in its functional efficiency compared to her previous abilities, especially with sports games." 7 Dr Cass described those limitations. He observed that the plaintiff did not feel comfortable when walking and standing and preferred using low-heeled shoes. She used a handrail when going up and down stairs. She could not jump any distance in height unless she landed with both her feet simultaneously on a flat surface. On examination, he observed that she walked without a limp. There was soft tissue swelling which was tender in the lateral gutter just in front of the distal end of the fibula at the ankle joint. There was a good range of movement of the left ankle. Dorsi flexion was 10 degrees above a right angle in plantar grade position and her range of flexion was 25 degrees beyond the plantar grade position. Inversion was 25 degrees and eversion 15 degrees. Pain was felt at the limit of both these movements and the pain was located at the antero-lateral side of the ankle joint. There was local tenderness overlying the anterior band of the lateral ligament and also the inferior band of the ligament, from the fibula to the talus anteriorly and the lateral side of the calcaneus inferiorly. Inversion accentuated the pain felt over the site of these ligaments and eversion also caused some discomfort in these areas. There was good power in the invertor muscle function. There was moderately strong resistance indicating some loss of efficiency in these muscles. The toe flexors and extensors were strong. At the limit of the plantar flexion there was tenderness with some discomfort over the antero-lateral aspect of the ankle joint. There was an increased anterior draw sign indicating some stretching of the anterior capsule and some inefficiency of the antero-lateral ligament at the ankle joints. 8 Dr Cass expressed this opinion: "Miss Gray does have persisting symptoms and signs of anterior capsuloligamentous injury with inefficiency in function affecting her left ankle. Because this has existed for three years and she is a keen sportswoman who feels significant restrictions in both her leisure and work activities. Miss Gray does need to be seen by an experienced foot and ankle surgeon such as Dr Les Grujic, who has rooms in Chatswood and works at Royal North Shore Hospital. I think she does warrant an arthroscopic examination to accurately examine the ankle followed by a repair of her anterolateral ligament complex, if the persisting laxity is confirmed. I do not think Miss Gray will achieve a full return to efficient sporting activities with continuation of conservative measures only." 9 On 8 July 2003, Dr Cass examined the plaintiff and gave a further report which although not included in the appeal books was in evidence. Dr Cass noted that the plaintiff was not able to work in the upright position as a casino dealer. She did not feel that there had been any real significant improvement since she last saw Dr Cass in October 2002. Dr Cass reported: "The acute ligamentous injury has been followed by healing of the torn ligament and soft tissues with elastic fibrous tissue, which is longer than the original ligament and does leave some increased laxity in the length of this ligament resulting in instability at the ankle when this ligament is put on stretch. There will be no improvement in this situation now unless there is surgical intervention with an attempt to repair the torn ligament in its approximately normal length.
If some improvement in stability is not secured, the likelihood of degenerative articular and ligamentous change will occur gradually over many years and will result in the development of post-traumatic arthritis. In a young woman of this age who wishes to marry and have a family, the likelihood of the development of significant osteoarthritic changes is likely necessitating surgical intervention in an attempt to improve function and reduce painful symptoms when these changes have developed in later years.
It would be in this lady's best interests to have a ligamentous repair procedure carried out before established changes occur in this ankle joint, as they will inevitably occur at a quicker rate if the ankle is left in its present condition.
Even a good surgical repair may not completely prevent the development of some post-traumatic changes in a person who intends to lead an active life and a woman who intends to have a family and undertake the necessary constant work in looking after them.
(i) Miss Gray's working capacity is restricted to work that does not involve a lot of standing, lifting of weights, repeated stair work or a lot of walking. It is in her best interests to be advised to obtain a sedentary job close to transport and home, rather than having to walk for long periods to catch the bus or train to get to work, where she stood for long periods.
(ii) It would not be in her best interests to try and return to the Star City Casino as a dealer. I do consider that Miss Gray is permanently unfit for that type of employment.
(iii) I do agree that I do consider it is in Miss Gray's best interests to seek work of a sedentary nature. She could carry out work involving standing, walking and lifting, though the likelihood of the development of post-traumatic joint changes would be increased with a work situation that involved lengthy periods of standing, a lot of stair work and carrying of weights.
I do consider that Miss Gray's injuries do preclude her from playing competitive basketball, as this would significantly increase the likelihood and the rate of development of degenerative changes in this ankle joint." 10 In one of two reports dated 7 July 2003, Dr Endrey-Walder said: "OPINION Ms Gray suffered a rupture of the lateral collateral ligament complex of the right ankle in an accident down some stairs outside her abode on her way to work in September 2000. Initially it was the medical advice to persist with physical therapy and support by way of an elastic sock, but unfortunately this had not resulted in any significant improvement of her symptoms, nor of her residual instability at the joint. She was never again able to return to her work as a Dealer at the Casino, a work activity which she rather enjoyed and was hoping to continue. Since the accident she has been trying to vocationally retrain herself into more office/administrative type of jobs, and this is certainly an advisable move as this lady would have considerable difficulty in any kind of work situation (or in her private life, for that matter) that necessitates her being on her feet for prolonged periods of time. Over and above her restrictions in relation to work activity that necessitates her being on her feet, walk excessively, cover uneven ground or steps, this sports-loving lady is now going to remain with significant ongoing physical restrictions that will impact both on her enjoyment of her life and her ability to ever again consider competitive sports activity." 11 In his second report of 7 July 2003 Dr Endrey-Walder said: "I believe that this lady's injuries in relation to her left ankle would suggest that she will remain in need of 5 or 6 hours help a week around her household with heavier duty cleaning, gardening and repair work. It is likely that she will continue to need assistance in that regard in the long term." 12 Referring to Dr Cass' report of 29 October 2002, Dr Endrey-Walder said: "I certainly believe, on the basis of this lady's testimony and my examination of her today, that the laxity as a consequence of the injury to the lateral collateral ligament does persist, but almost three years after the event the changes of successful repair of the ligament are rather meagre. Furthermore, there is no guarantee, even if a successful anatomic repair is obtained, that this lady's ongoing symptoms will lessen significantly. Still, should she continue to have recurrent acute inversion injuries, an arthroscopy of the ankle may be [in] order to ascertain as to whether there is any associated chrondral damage, especially at the sub-talar joint. An arthroscopy would cost this lady approximately $3,000.00 and if an open repair of the ligament is decided upon, the cost will be an additional $3,000.00. At times of symptomatic aggravation, and I am referring to her recurrent inversion injuries, physiotherapeutic treatment on the basis of three sessions a week over a period of three to four weeks ($50.00 a session) would be appropriate. I would recommend that she wears a Thermo-skin elastic support around her ankle whenever she is outside her home, or when performing some household related duties, and such would cost her in the vicinity of $100.00 and would have to be renewed every six to 12 months." 13 Although both the reports dated 7 July 2003 were in evidence, neither was included in the appeal book. 14 On 10 July 2003 Dr Endrey-Walder commented on Dr Cass's report of 8 July 2003. Dr Endrey-Walder reported as follows: "1. My reservations, expressed in my previous report (7.7.2003) regarding the prognosis following ligamentous repair of this lady's left ankle relate to the likelihood of such an operation not significantly increasing this lady's functional capacity as far as the left leg is concerned. That is, she might not necessarily be able to be more agile on the left leg following stabilisation of the ankle, and she may remain with a somewhat decreased range of movement at the joint. I do appreciate, however, Dr Cass' concern regarding the development of osteoarthritic changes at the ankle as a consequence of sustained instability of the joint, and I would accept that a successful stabilisation of the joint would likely decrease the rate of osteoarthritic degeneration at the ankle, even if such may not necessarily stop such from developing. 2. In line with the above, I would argue that while stabilisation of the ankle would likely be beneficial in slowing the reactive arthritic changes at the ankle in the future, I do not believe that this lady will ever again be considered fit for any kind of work activity which necessitates her being on her foot for more than three or four hours a day, and in which she has to negotiate uneven ground or steps, or which necessitates her having to crouch or kneel. 3. I would expect this lady to be in need of at least two hours assistance a day, seven days a week for a period of six weeks following a ligamentous repair procedure, and she will be in need of about an hour and a half help a day for another six weeks thereafter. Even given a most successful operation, she will continue to be in need of five or six hours help a week in the long term." 15 None of the doctors to whom I referred gave oral evidence. The plaintiff gave evidence that the day before the trial began she saw Dr Grujic after having waited ten months for an appointment. No report from Dr Grujic was put in evidence. At the defendant's request, she saw Professor Ham, a general surgeon, on 7 November 2002 and Mr Luiker, a psychologist, on 5 December 2002. No medical evidence was tendered by the defendant. 16 According to the plaintiff's evidence she was off work after 2 September 2000 for approximately two weeks. Initially she received workers compensation for this period but was then told to pay it back. She started back on work performing light duties but never returned to her previous position as dealer. She went back to full time work in administration on about 5 December 2000. At this time she received about $350 "clear". She said that her income as a level 5 dealer had been $1,100 a fortnight clear, that is to say $550 a week. She described her visits to Dr Blatchford and Dr Steel, whom she saw on two occasions, and home treatment for her ankle, using amongst other things a TENS machine two or three times a week. She acknowledged leaving Star City Casino in July 2002 and taking six months off work to help her mother. In February 2003 she started with Harbord Real Estate and then on 2 July 2003 with International Seal Company Australia Pty Ltd. 17 When asked about her work at Star City Casino, she said that, but for the injury, had she continued there she would have automatically been promoted to a level 6 dealer after six months and then automatically to level 7 after eighteen months. A letter from Star City Casino Administration Manager dated 10 July 2003 was in evidence. I set out the following paragraphs. "3. The average salary for Level 5 dealers in 2000 was approximately $35,000.00. 4. If Ms Gray had not been injured as a dealer she would have reached the level 6 position. 5. She would have been earning approximately $42,000.00 as a level 6 dealer. 6. If Ms Gray had remained with Star City it is most likely that within 5 years from today's date Ms Gray would have reached the level of Dealer/Supervisor, within 10 years she would have reached a full time position of Supervisor and within 15 years that of Pit Manager. This time frame is greatly effected [sic] by the market forces and business requirements. 7. Dealer Supervisor as of today's date would be earning approximately $46,000.00. A full time supervisor as of today's date would be earning approximately $52,000.00." 18 According to this the gross average weekly salary ranged from about $670 as a level 5 dealer to $1,000 as a full time supervisor. The plaintiff gave evidence that when she worked at the Harbord Real Estate her gross salary was nearly $500 a week plus a car allowance. She said that a net amount of $493 a week went into her account at this time. With her current employer she received about $523 per week net. 19 Also tendered at the hearing was a notice of amended assessment for the plaintiff for the year ending 30 June 1999 showing an amended taxable income of $24,249, her tax return for 30 June 2000 showing a taxable income of $26,563, an income tax assessment for 30 June 2001 showing a taxable income of $28,444 and for 30 June 2002 showing a taxable income of $33,297. 20 At the trial the plaintiff's counsel handed to the trial Judge a written set of calculations of the plaintiff's claim for past economic loss. This was not marked and not included in the appeal book but produced from the papers at the hearing of the appeal. The sheet handed up showed claims for the following periods:
($12,618) 21 The plaintiff went on to describe the pain and insecurity she suffered as a result of her injury. She said that for three or four months she had problems in driving her car, that her ankle was always unstable, that once every couple of months she went over on her ankle, that she could not wear high heeled shoes and did not go out dancing any more. She said that on a day to day basis she suffered some pain which did not go away usually until she went to bed. She wore an elastic sleeve every day. She said that anything such as golf or shopping, which required standing for a long period, made her ankle sore. She had not continued with any other sports but played nine holes of golf about once a month. She had a partner, Andrew, who helped with household chores such as washing and cooking. When asked what chores she currently had trouble performing the plaintiff said: "Just the vacuuming and the washing". She said it would take someone "an hour or two hours, two hours" a week to do. Her partner is a carpenter. The problem with the washing was, she explained in cross-examination, walking up two flights of stairs with a basket to hang it out. She conceded in cross-examination that there had been no change in her ankle for the previous eighteen months. She agreed that she left Star City Casino to help her mother through a difficult time. Her most recent appraisal by Star City Casino before departure was that she was an excellent employee. 22 The cross-examination continued as follows: "Q. And if I might just ask you this, at the beginning of your employment at Star City at the beginning of May 2000 do you recall that your annual salary at that time was $30,344.08 gross? A. It could be I can't really remember to tell you the truth. Q. In June of 2000? A. June of 2000 when-- Q. That's about when you started isn't it? A. I first started yeah I think I used to get about 1,000 to 1,100-- Q. I want to suggest to you that you were getting a salary of $344.08 gross at the beginning of your tenure at Star City with a superannuation of $2,124.09 making a total remuneration package of $32,468.17 does that sound correct? A. If that's what the weekly wage works out to be in a yearly amount. Q. I want to suggest to you that you were sent a letter from Star City to your premises at Corella Street, Harbord in May 2000 setting out your remuneration package with those amounts? A. I just got a letter of offer yes yes. Q. That would be correct wouldn't it that would have your remuneration package? A. Yeah yeah that's the letter of offer. Q. From time to time you were sent other letters from Star City telling you about the variations in your salary and employment package correct? A. Yes. Q. And in fact over your time in Star City you had three other letters from them does that sound right? A. I've had lots of letters from them yeah. Q. Well after 17 May 2000 the next time that your pay package was altered was in 6 December 2000 does that sound right? A. Yes. Q. And that's when you transferred from the position of dealer to game training administrator in the human resources operations department? A. Yes. Q. And that was effective from 4 December 2000? A. Yes. Q. And your salary there was $30,000 with a superannuation of $2,400 making a total remuneration of $32,400 does that sound right? A. Yes. Q. That was your second position? A. Yes. Q. At that time your gross salary of the year was some $344.08 less than you were earning as a dealer? A. As a base dealer yes that didn't include shift extras and meal allowances and things." 23 Later in the cross-examination, this interchange took place: "Q. By the beginning of November [2000] you were working full time in your new position at Star City correct? A. I thought I was on 32 hours that's the understanding I was on, that's what I believe. Q. Now you were being paid fortnightly by Star City throughout the entirety of your employment there? A. Yes. Q. And I want to suggest to you that the first cheque you got from Star City was for a gross amount of $1,075 does that sound right? A. Yes. Q. By the time you left Star City you were getting regularly over at least six months gross pays in the amount of approximately $1350 gross per fortnight and sometimes greater than that? A. Was that first figure net. Q. I'm not wishing to confuse you I'll ask the question again, your first pay packet at Star City was for the sum of about $1,074 gross? A. Gross. Q. Does that sound right? A. The first pay period yeah it might have been it might not have been a full fortnight. Q. Well the second pay period I want to suggest to you was for the sum of $860 gross? A. Was it. Q. And by the time you finished at Star City you were earning over a period of six months in excess of six months the sum of $1350? A. That was in 2002. Q. Yes that started in fact at the end of 2001? A. Yeah. Q. In November? A. Yeah when I signed the new contract yes. Q. And before that you were earning for sometime from about May 2001 just over $1200 gross? A. Yes that was the $32,000 a year I think that was." 24 The plaintiff conceded the last time she complained to Dr Blatchford about her ankle was in November 2000. She was asked whether she had complained to any medical practitioner at the Warringah Mall Medical Centre about her ankle after November 2000. She said "I think I would have talked about it in passing occasions yeah but I knew that there was nothing they could do to fix me so probably yeah, with my general practitioner probably not no not after November." She agreed that she would have seen her general practitioner with some frequency after November 2000. She said that in October 2000 she was still employed as a dealer level 5. She conceded that by February 2003 she knew that Star City would happily re-employ her. She accepted that by October 2002 she had a regular programme of exercise which included taking daily bicycle rides of 2 kms. She said she wanted to get married and have four children. 25 In re-examination appeared the following: "Q. You were asked a number of questions about various letters you had received from Star City about the salary that you could be expected to be paid and you kept indicating to my friend yes that would be the base salary what did you mean by that? A. Well when you're a dealer you work on a 24 hour roster and the actual base salary was from if I recall correctly think it was 6am to 6 pm Monday to Friday and that was paid your base hourly rate and then from I think it was Monday to Friday 6pm to 6am I think it was paid at time and a ¼ and then if you worked on a Saturday from 6am to 6pm I think it was time and a ¼ outside them times, time and ½ and then Sunday time and ¾. Q. When you were working as a dealer would your times alter and vary? A. Yeah you worked on a 24 hour seven day a week rotating roster. Q. You and how many others? A. Yeah there were 900 of us so you didn't have a choice in what shifts you did. Q. But you worked any number of shifts? A. Yeah. Q. Such that you work what 38 or 40 hours a week is that right? A. Yeah. Q. What was it do you recall? A. 38 hours, yeah 38 hours a week. Q. When you went to work in human resources what were your hours then? A. 40 hours a week 8.30 to 5 Monday to Friday. Q. Was there any shift work or any of that involved? A. No nothing just Monday to Friday no weekends, no nights, no nothing."
Reasons for judgment 26 Judge Graham said that the plaintiff presented as an honest witness and had given answers which appeared to reflect genuine concessions on her part. Her evidence was given honestly and in an attempt to give an accurate account of events. He regarded as a matter of significance that the plaintiff had had to give up her employment as a dealer, a position which she had been prepared to wait two years and to undergo several months of unpaid training to obtain. He referred to the medical evidence and observed that no report had been tendered from Dr Steel or from a physiotherapist. He inferred that any reports from Professor Ham or Dr Luiker would not have assisted the defendant's case. He regarded the plaintiff's attention to medical treatment as being consistent with her broad attitude to her disabilities. The plaintiff had followed such medical advice as she was given and had attempted to exercise and to treat herself by means of various recommended devices. His Honour said: "It is conceded that the injury to her left ankle sustained on 2 September 2000 was a significant injury but, thereafter, the competing submissions diverge markedly. The ultimate submission put being that, in the case of the defendant, this is not a matter which would reach the 15% threshold in section 16 of the Civil Liability Act 2002. On the other hand, counsel for the plaintiff submits that the case is one which would significantly exceed that threshold. … So far as non-economic loss is concerned, the medical evidence, it seems to me, largely speaks with one voice, that is that the plaintiff has had a significant injury, has significant disability and incapacity and is likely to retain such a disability and incapacity for the indefinite future." 27 Judge Graham gave a short summary of Dr Patrick's reports and continued: "In that regard, the evidence, which is unchallenged, is that the plaintiff was an active sportswoman, particularly while she was at school, to the point where, in Year 11, she represented Australia, both in this country and overseas, in a junior basketball team. At the same time she played other sports including softball and touch football. She restricted the level of her competition in her final year at school in order to concentrate on the Higher School Certificate. After completing her schooling she went to Queensland for a year or so on a working holiday, working in housekeeping and similar work." 28 His Honour referred to the 111 kilometre kayak paddle abandoned because of her disability and her experience with golf including an occasion in July 2003 where she told Dr Cass that the discomfort and swelling in her left ankle had only just resolved three days after playing nine holes of golf. His Honour quoted from Dr Patrick's first report and ultimately from the results of his further examination on 30 October 2002. His Honour summarised Dr Cass' report of 29 October 2002. Reference was made to Dr Cass' further report of July 2003. The trial Judge said: "He [Dr Cass] saw her again in July this year and indicated that the plaintiff stated that she still had very similar symptoms and pain, together with similar restriction of physical activities as she had when he first saw her in October 2002. He referred to her regular use of a support stocking and thermoband as a resistance exercise agent to exercise her ankle and foot against the elastic resistance." 29 Judge Graham quoted parts of Dr Cass' report which I have already set out. The trial Judge said: "[Dr Cass'] view as to her fitness for work was that her capacity was restricted to work that did not involve a lot of standing, lifting of weights, repeated stair work or a lot of walking. It was in her best interests to be advised to obtain a sedentary job close to transport and home, rather than having to walk long periods to catch the bus or train to get to work where she stood for long periods. It would not be in her best interests, in his view, to try and return to the Star City Casino as a dealer. He considered that the plaintiff was permanently unfit for that type of employment. He thought that she could carry out work involving standing, walking and lifting though the likelihood of the development of post-traumatic joint changes would be increased with a work situation that involved lengthy periods of standing, a lot of stair work and carrying of weights. He clearly ruled out her playing any competitive basketball. The plaintiff herself indicated that she had, on occasion, taken part in a very light way in basketball activities at a local court, but any capacity to play basketball in the long term at a competitive level is clearly ruled out, at least by Dr Cass. I should say that Dr Cass's report, particularly that of July, when taken in conjunction with his earlier report, clearly spells out the mechanics of the plaintiff's present ligamentous disability and persuasively explains the reason why surgical intervention is a good idea." 30 Of Dr Endrey-Walder's reports, his Honour said: "Dr Endrey-Walder also reported on the plaintiff. He saw her again for medicolegal purposes in July of this year. An earlier report of 4 April 2003 sets out the cost of an arthroscopic examination of the ankle followed by operative repair of the ligament, but any earlier report on a more detailed basis is not before the court." 31 Judge Graham stated the following conclusions from the medical evidence. "Firstly, that the plaintiff presently is unable to carry out work as a dealer in the casino, that being the type of work for which she had specifically had herself trained and which she was prepared to wait two years to take up. Secondly, that position is not going to change in the future. Thirdly, the symptoms which she presently has are likely to continue. Fourthly, if the plaintiff has the surgery contemplated, and I accept that she will virtually certainly do so, the best that can be hoped for from that surgery is some prospect of improvement, though not resolution, of her symptoms and, perhaps more importantly, it would have the effect of slowing down the process of post traumatic arthritis. Finally, the medical evidence, it seems to me, is at one in establishing that the plaintiff is now a person who is substantially limited in her physical capacity in a way which impacts on the types of work for which she is suited and that these incapacities or disabilities are the type which would change, and have changed, a fundamentally active young sportswoman into a woman whose activities are largely sedentary or semi-sedentary. From competitive basketball a few years ago, she is now restricted to the traditional sports of the elderly, golf and bowls. So far as the former is concerned, she cannot play 18 holes and, even after nine holes, experiences an increase in her symptoms. In other words, the plaintiff (who is now only 24 years and 10 months old) has experienced, and will experience, a drastic change in her life, affecting both her physical and economic activities, as a result of this injury. There is no real prospect for resolution in the future, at best an opportunity to diminish the symptoms and, perhaps, slightly improve her physical capacities and probably no more than an opportunity to delay the inevitable onset of post-traumatic arthritis. There is certainly no guarantee of improvement from any further surgery, but a very real case for some surgical intervention taking place in the near future to provide what relief can be provided by those mechanisms." 32 This brought his Honour to the assessment required to be made under s16 of the Civil Liability Act 2002. The trial Judge said: 'The medical evidence here and the factors which I have described, it seems to me, clearly demonstrate that, as a case compared with a most extreme case, this case would go well beyond the 15% threshold. Given that the injury is one which affects one joint only and that the plaintiff has, to some extent at least, been able to maintain physical fitness including as often as she can two kilometre bike rides, the kayak training and matters of that sort, it might be thought that she has significantly adjusted to these disabilities. On the other hand, for the rest of her life she will have to live with the very real restrictions on her physical and economic capacities brought about by this injury. She has already lost much of what she enjoyed in life by way of physical activity and the work which she had set her heart on and which she hoped would provide a passport to employment overseas, including on cruise liners in the Caribbean and similar employment. In those circumstances, it is difficult to reach an absolute conclusion as to what percentage this case would represent but, given the age of the plaintiff, the likely duration of these disabilities, the need for surgery and the lack of any real optimism to any major improvement from surgery, the impact of the injury and disabilities in the past and into the future on her work capacity and physical enjoyment capacity, the risk of the accelerated development of post-traumatic authorities (sic), it seems to me that this is a case which would fall into a relatively serious category of cases, though far from being a most extreme case. The impact of these disabilities on the plaintiff and the time over which those disabilities will impact on her it seems to me, are matters which require the court to assess this as being a case which is 33% of a most extreme case. The present figure under section 16 of the Act for a 100% case is $384,500. The amount which is to be awarded for a case which is a 33% case is $127,000 and I allow that amount."
Appeal 33 The defendant appealed against the awards for non-economic loss, future domestic assistance, future economic loss and consequentially the loss of future superannuation on the following grounds: "1. His Honour erred in holding that the Plaintiff was entitled to an award for non-economic loss of 33% of a most extreme case. 2. His Honour's award for non-economic loss was manifestly excessive. 3. His Honour erred in holding that the Plaintiff was entitled to an award for future domestic assistance in the amount of $41,437.00. 4. His Honour's award for future domestic assistance was manifestly excessive. 5. His Honour erred in holding that the Plaintiff was entitled to an award for future economic loss in the amount of $77,945.00. 6. His Honour's award for future economic loss was manifestly excessive. 7. His Honour erred in holding that the Plaintiff was entitled to an award for loss of future superannuation in the amount of $7,115.00. 8. His Honour's award for loss of future superannuation was manifestly excessive."
Non-economic loss 34 The defendant appellant submitted that the trial Judge in assessing the severity of the non-economic loss failed to take into account - · That the plaintiff's injury was, in lay terms, a serious sprain. The bone scan of 3 October 2000 found a "left ankle traumatic synovitis and medial ligamentous strain but no evidence of fracture". · The plaintiff had significantly adjusted to her injury. She was able to return to playing some basketball. She played nine holes of golf and was able to pull her golf buggy over the golf course. She trained for a 111 km kayak event. She was swimming regularly. She was taking daily 2 km bike rides. These strenuous activities required the plaintiff to run, jump and twist, and are inconsistent with someone who has significant physical disability. · The plaintiff had only a short time off work. She was able to resume full time employment within one and a half months of her injury. · The plaintiff did not complain to any medical practitioner about her injury after early November 2000, save to those arranged by her solicitor for medical legal purposes.
In totality it was submitted that on the evidence the plaintiff was a fit and active young woman. 35 Division 3 headed "Fixing damages for non-economic loss (general damages)" of Pt 2 headed "Personal injury damages" of the Civil Liability Act, contains s16 headed "Determination of damages for non-economic loss". Section 3 of the Act defines non-economic loss as meaning any one or more of the following: "(a) pain and suffering, (b) loss of amenities of life, (c) loss of expectation of life, (d) disfigurement." 36 Section 16 of the Act relevantly provides: "(1) No damages may be awarded for non-economic loss unless the severity of the non-economic loss is at least 15% of a most extreme case. (2) The maximum amount of damages that may be awarded for non-economic loss is $350,000 [which had been adjusted by the time of trial to $384,500], but the maximum amount is to be awarded only in a most extreme case. (3) If the severity of the non-economic loss is equal to or greater than 15% of a most extreme case, the damages for non-economic loss are to be determined in accordance with the following Table:"
The table is set out under two columns. The first is headed "Severity of the non-economic loss (as a proportion of a most extreme case)" and the second is headed "Damages for non-economic loss (as a proportion of the maximum amount that may be awarded for non-economic loss)". In relation to this table subsection (4) provides: "(4) An amount determined in accordance with subsection (3) is to be rounded to the nearest $500." 37 The second column of the table is scaled in a way which means that if the severity of the non-economic loss as a proportion of a most extreme case is 15%, damages as a proportion of the maximum amount that may be awarded for non-economic loss is 1%. Severity under the first column of 32% is scaled to produce a damages percentage of 30%. 33% in the first column produces a damages percentage of 33% and thereafter the percentage in the first column equates to the percentage in the second. The percentage determined by Judge Graham under the first column was the lowest percentage which carried across into the second column as an equivalent percentage. 38 A similar provision is found in s79A of the Motor Accidents Act 1988 and was discussed by this Court in Kurrie v Azouri (1998) 28 MVR 406. In that case, the plaintiff who was thirteen years of age at the time of the hearing and ten when the motor accident occurred, suffered a laceration to her lower right leg which left her with permanent scarring which it was not possible to eliminate. She found the scarring ugly and it inhibited her normal living and social activity. Sheppard AJA (with whose judgment the other member of the Court, Beazley JA agreed) addressed s79A(4), namely the provision that no damages might be awarded for non-economic loss unless the severity of the non-economic loss suffered was at least 15 per cent of a most extreme case, at 413-414, and said: "The expression 'a most extreme case' requires some discussion. It enables one to provide oneself with the yardstick as to what the legislature had in mind. A court considering the question will need to contemplate what in practical terms is embraced by 'a most extreme case'. Immediately one considers such a case, one thinks of cases of quadriplegia, perhaps some serious cases of paraplegia, cases of serious brain damage and, perhaps, some cases of extremely serious scarring and disfigurement caused, especially to young children, by scalding or burning. No doubt there are others. But even some cases falling within the categories I have instanced would not necessarily justify the description of a most extreme case. There would no doubt be many serious cases which would fall below the maximum although they might yield 80% or 90% of the amount to be awarded in respect of a most extreme case. In the present case his Honour has concluded that the opponent's evidence established that her injuries have placed her in the category of a person who has suffered consequences having the severity of 29% of a most extreme case. In other words, as counsel pointed out, the finding here has involved the court in concluding that the opponent's injuries place her in a category of having suffered injuries of a severity little less than one third of those suffered by, say, a quadriplegic. His Honour's judgment is a comprehensive and most careful analysis of the evidence in the matter and indicates the deep consideration given by him to it. He obviously developed a deep sympathy for the opponent but the question which has to be answered is whether this did not lead him into error. In an area of the award of damages which is recognised as being quite imprecise, I was surprised to think that any award could be made based on such a precise percentage, 29%, as distinct from say 30% or 25 or 20%, of a most extreme case. But what, in a sense, justified his Honour in reaching such a precise percentage was the fact that that is what the legislature apparently expects courts to do. The award of 1% in these matters can have quite a significant effect. For instance, a conclusion that the level of the severity is 20% will yield only 3.5% of the damages available for a most extreme case. But, if the degree of severity is 25%, the amount that may be awarded is 6.5%, almost double what might be awarded if the degree of severity is 20%. … The next question is whether the degree of severity has reached the threshold of 15%. I do not think that is an easy question either. Having in mind the object of the section to which I earlier referred, one has to give effect to it by excluding cases where the threshold of 15% is not reached from any award at all. To courts used to awarding damages for non-economic loss over the years, this is perhaps something which will cause many to baulk before finding that the degree of severity is less than 15%. There is also the temptation to look at the second column of the table in reaching one's conclusion. If one does decide the case meets the threshold and does involve a degree of severity of 15%, one may only award 1% of the amount to be awarded in a most extreme case. That, in the present case, would yield $2,500. As a figure that is obviously quite inadequate to compensate the opponent for the injuries which she has suffered. But it is the legislature's intention that that should be the case unless the court is satisfied that the percentage is at least 15%. I think it has to be said that it would be very dangerous for judges exercising the discretion provided for in the section to look at the second column before considering the first. The second column should only be considered after a clear conclusion has been reached in relation to the first unaided by any consideration of the amounts which will be yielded by the application of the second column to the percentage selected under the first. The temptation to look at the second column must be avoided. If it is not, it is not unlikely that the whole exercise will become infected by error." 39 Sheppard AJA was satisfied that the plaintiff's case warranted being treated as one which had achieved the 15 percent threshold. That presented the question of what percentage was appropriate. His Honour said: "I have the greatest difficulty in selecting any percentage other than one ranging between the 15% threshold and 20%. I think anything more than 20% would be excessive. Twenty per cent itself is, I think, too much. I have reached the conclusion that an appropriate percentage is 18% which yields 2.5% of a most extreme case. That means that in the present case the amount of damages for non-economic loss should have been 2.5% of $250,000 rather than 18% of that sum." 40 In Kurrie v Azouri the principal injury the plaintiff suffered as mentioned above, was a severe laceration to her lower right leg which left her with permanent scarring. The scar was a prominent stretched scar roughly in the shape of the numeral seven. It was on the front of the right leg commencing just below the knee and extending a considerable distance down the leg. Close to the scar edges lay a series of fine but visible suture marks. There was decreased sensation and paraesthesia to deep palpation in the area of skin roughly enclosed by the two limbs of the scar. There was also discomfort on deep palpation in the upper half of the vertical element of the scar. The scar had a psychological effect on the plaintiff inhibiting significantly her normal leisure and social activity. Even though firmly healed the area of the scar could be considered more susceptible to future breakdown in the event of the occurrence of vascular or lymphatic disturbance to the limb later in life. It was not possible to eliminate the scar though it would have been possible to improve its general appearance. 41 In my opinion, to apply the language of the majority in House v The King (1936) 55 CLR 499 at 505, upon the facts Judge Graham's decision that the severity of the non-economic loss suffered by the plaintiff as 33 percent of a most extreme case was so unreasonable and plainly unjust that it must be inferred that in some way his Honour failed properly to exercise the discretion reposed in him in making the determination he did. One need say no more than state that a person suffering the injury to the left ankle which the plaintiff suffered, with the described consequences in terms of present and future disability, pain and suffering, loss of amenities of life, loss of expectation of life and disfigurement, could not reasonably be regarded as representing 33 percent of the severity of the non-economic loss (as a proportion of a most extreme case) comparing the plaintiff's non-economic loss with that of persons affected by injuries such as those described by Sheppard AJA. 42 Accordingly, in my opinion, grounds 1 and 2 of the appeal should be upheld and the amount awarded by Judge Graham for non-economic loss set aside. 43 The appellant did not submit that the threshold under s16(1) of the Civil Liability Act of at least 15 percent of a most extreme case had not been reached so that no damages could be awarded under this head. It was submitted that the appropriate assessment would be in the range of 15 - 20 percent of a most extreme case. I have set out in these reasons for judgment the plaintiff's evidence and the various doctors' histories of her pain and suffering and loss of amenities of life, including particularly the possible development of osteoarthritis. For a person of the plaintiff's age who has been denied the opportunity to follow an occupation which she particularly enjoyed and to continue outdoor activities which she enjoyed and in which she apparently excelled, these were significant. Bearing all these matters in mind, I have come to the conclusion that the severity of her non-economic loss as a proportion of a most extreme case was 20 percent which, according to the tables in s16, entitles her to damages for non-economic loss as a proportion of 3.5 percent of $384,500, namely, rounded to the nearest $500, $9,500. This amount should be substituted for the $127,000 awarded by the trial Judge.
Future domestic assistance 44 The appellant contended that the trial Judge ought to have made no allowance for future paid domestic assistance. According to the evidence, the only areas where the plaintiff required assistance were for vacuuming and washing. Her partner did the vacuuming twice a week. It took half an hour each time. Whilst the push/pull action of vacuuming apparently sent shooting pains down the plaintiff's ankle, the plaintiff was able to pull a golf buggy around the uneven ground of a golf course for nine holes. She was also able to swim, play basketball, train for a kayak race and ride a bicycle for 2 kms each day. She had no difficulty hanging up clothes. Her real difficulty was bringing a heavy basket up the stairs to the drying area. The plaintiff had been able to assist her mother over many months making her breakfast, making her bed, taking her to doctors, taking her to appointments and to the CRS. 45 The trial Judge said correctly that there was unchallenged medical evidence that the plaintiff had a need for forms of assistance in the house. In his second report of 7 July 2003, Dr Endrey-Walder stated that the plaintiff's injuries in relation to her left ankle would suggest that she would remain in need of five or six hours help a week around her household with heavier duty cleaning, gardening and repair work. It was likely that she would continue to need assistance in that regard in the long term. The trial Judge saw the plaintiff and heard her evidence. I am not persuaded that any ground is shown which would permit this Court to interfere with the award of damages for future domestic assistance. In my opinion, grounds 3 and 4 of the appeal should be rejected. 46 By leave of the Court the plaintiff cross-appealed against the trial Judge's deduction of 15 percent for vicissitudes. The defendant conceded that the cross-appeal should succeed (see Sharman v Evans (1977) 138 CLR 563 at 587) and accordingly, his Honour's award of $41,437 should be set aside and the amount of $48,749 substituted therefore.
Future economic loss 47 Judge Graham, when dealing with past economic loss, addressed a submission by the defendant that there was in reality no such loss because, although after her injury the plaintiff was not able to continue as a dealer with Star City Casino, she had for the period from September 2000 until the end of June 2002, worked for Star City Casino in an administrative capacity with a similar rate of pay. When she voluntarily resigned at the end of June 2002 she went to live with her mother to assist her mother for a period of about six months. The plaintiff thereafter started work with Harbord Real Estate in February 2003 where she remained until May when she was terminated. In July 2003 she began work at International Seal Company where she was still working at the date of trial. 48 The plaintiff claimed, according to the trial Judge, that, by reference to what she would be expected to have earned had she continued as a dealer at the Casino with the relevant increments arising out of the type of promotion which she could anticipate, there was a difference between what she would have expected to have earned, had she not been injured, and what she was now capable of earning. The trial Judge said: "The plaintiff's counsel has prepared a schedule of past economic loss which is based on the assumption that, at the time of the injury she was earning $500 per week net. Inevitably, in seeking to establish a loss of earning capacity and economic consequences of that lost capacity, some degree of imprecision is unavoidable. Generally speaking however, there is no doubt, on the medical evidence, that the plaintiff, from the time of this accident onwards, has been unable to work as a dealer and is not going to be in a position to resume that type of work at all in the future. There is, in other words, no doubt that her capacity for work is limited in that she is precluded from working as a dealer in a casino and is effectively precluded from other forms of work which involve a large degree of movement and activity, such as walking long distances and the like. In other words, the types of employment for which she is now suited are, physically speaking, significantly reduced. A starting point for a consideration of a translation of that loss of capacity to an economic loss is to consider the plaintiff's relative lack of employment qualifications. She apparently completed the Higher School Certificate but her only formal training appears to have been the several months spent as an unpaid trainee in order to get employment at the casino. Earlier this year she decided to take employment as a receptionist at a real estate office with a view to becoming involved in real estate work, including real estate management, but that work did not last. She has more recently, in the last month, obtained employment where her involvement is with accounts and where she hopes to be able to pursue an interest in employment in the financial world. But, at the age of 24, the plaintiff is only trained in the formal sense for one job and that is one job which she cannot do. It has, however, been asserted that there is, otherwise, work available or likely to be available to the plaintiff which would be just as lucrative. To put it more accurately, has the plaintiff demonstrated that she, in fact, is losing money as a result of her physical incapacity, and, if there is any difference in what she might have earned as a dealer compared with what she has earned, is that due to the physical incapacity or is it due to a choice by the plaintiff for reasons other than the physical capacity? It seems to me that, addressing the latter question first, while the plaintiff could have returned to the casino, she found the administrative work boring, unfulfilling and she found it frustrating to carry out that work. It was of course, work in the same place as she had hoped to fulfil her ambition of becoming a dealer and progressing up the ladder of promotion in that field. In those circumstances, it is perhaps understandable that she would find it difficult to return to that employment once her mother's position had stabilised. Given her lack of formal occupational qualifications, the selection of work in a real estate office as a means of entering the real estate world is, it seems to me, a rational and explicable choice as a way of seeking to maximise the plaintiff's employability, notwithstanding her physical incapacity. The same, it seems to me, could now be said of her present employment and her desire to try and become involved in employment in the financial sector, again an area in which she expresses some interest, though whether she has the aptitude for it is yet to be fully demonstrated. It seems to me, therefore, that, if the plaintiff is able to establish a differential between what she could have expected to be earning as a dealer and what she has actually earned since 2 September 2000, then, in my view, she would be entitled to recover that difference. Counsel for the plaintiff, in his calculations, has carefully done the mathematics and, in his submissions, persuasively argued for the proposition that, at least on a broad and practical basis, the various steps in the claim for past economic loss have been established on the evidence here. I accept those submissions." 49 In the result, the trial Judge awarded $12,618 which was the amount calculated by counsel for the plaintiff in the sheet handed up to the trial Judge to which I have already referred. 50 We do not have a transcription of counsels' argument to the trial Judge. More importantly the defendant did not appeal against the assessment of damages for past economic loss. The challenge was to the award of future economic loss. As will appear from the trial Judge's reasoning, this calculation sprang from the same source, namely the plaintiff's counsel's calculation for past economic loss. The trial Judge said: "So far as future economic loss is concerned, the plaintiff claims effectively a present loss of about $100 per week net, together with the loss of opportunity for promotion and enhanced earnings in the casino industry. The present loss of $100 is essentially the amount which is said to flow from the difference between the plaintiff's earnings over the last four weeks and her anticipated earnings as a dealer at the casino over that time. But it is, I think, significant that the calculations put forward on behalf of the plaintiff indicate varying differentials of $150 per week over eight weeks, $77 per week between December of 2000 and July of 2002, $132 between the period of employment in the estate agents office and $102 in the present employment. The plaintiff, as I have said, cannot work in the future as a dealer. She will need to find a form of employment which is suitable to her talents and which will enable her to maximise her earning potential but with the background of her physical incapacity. It seems to me that a claim of $100 per week would, overall, take into account not only her actual present loss but, more practically, take into account the way in which there is always likely to be some margin between what she can earn with her restricted earning capacity now and what she could have earned with an unrestricted capacity in the past. Not only would that capacity have allowed her to work as a dealer but also in any other form of employment requiring fitness and agility such as the plaintiff was amply able to demonstrate as a young woman. On the other hand, the court must take into account the prospect that she will be able to turn her talents to remunerative employment and that she may have some prospect of being able to reduce that margin, but it seems to me that, in a rough and ready way at least, that prospect of augmentation of her earning capacity is to be set off against the loss of the opportunity for promotion in the specific industry for which she was trained and in which she had been employed, namely in the casino industry. In other words, it seems to me that the appropriate way of approaching future economic loss in this case is to accept a continuing loss of $100 per week net, which I do. The plaintiff, at the age of 24, has perhaps 40 years left in the workforce and, on the 5% tables, that loss of $100 per week would produce a figure of $91,700. Having regard to the provisions of section 13 of the Civil Liability Act , it seems to me that the court must consider, appropriately, the claimant's prospects and adjustments and to some extent those have already been dealt with. It seems to me that, where the plaintiff was otherwise in good health and had what was likely to be steady employment, then, in the absence of any actuarial or other expert evidence on the matter, it seems to be appropriate to take the view that the probability or likelihood that she would continue in that employment until a reasonable retiring age would be in the vicinity of 85%. In other words, the reasoning behind the conventional figure of 15% for vicissitudes would, in the present case, seem to be an appropriate way of making the assessment referred to in section 13 of the Act. Accordingly, I propose to allow that sum of $77,945, being 85% of the figure of $91,700." 51 In its written submission, the appellant stated the basis of the challenge to future economic loss as being that the trial Judge had not adequately taken into account the following matters in coming to his determination: · The Plaintiff did not lose her employment at the casino as a result of any disability. · The Plaintiff was able to obtain further and other employment at similar wages in spite of her injury. · At the time of her injury, the Plaintiff was earning $32,468. · At December 2000, 3 months after injury the Plaintiff was earning $32,400. · At May 2001, the Plaintiff was earning $33,858. This was in excess of what she was earning at the time of her injury. · At November 2001, the Plaintiff was earning $38,150, significantly more than she was earning at the time of her injury. · The Plaintiff left remunerative employment at the casino in July 2002 voluntarily, to take care of her mother. · After seven months of unemployment, the Plaintiff started to look for work, but didn't wish to return to work at the casino, although the casino had told her that they would re-employ her. · The Plaintiff then assisted her boyfriend in his carpentry business. · In February 2003, the Plaintiff commenced work at Harbord Real Estate. She was earning $493 net. That employment was terminated in May 2003. · In July 2003, the Plaintiff commenced employment with International Seal Company, where she remained employed at the date of the hearing. · The Plaintiff identified no physical or other limitations she has had with any of her various employments. 52 Quite clearly, the trial Judge assessed future economic loss by reference to the plaintiff's earning experience up to the time of trial. This produced a loss of $100 a week which was not challenged. No basis was advanced upon which this Court would be justified in interfering with the trial Judge's assessment of future economic loss based on a weekly loss of $100. Accordingly, grounds 5 to 8 inclusive of the notice of appeal should be rejected.
Orders 53 In my opinion, both the appeal and the cross-appeal should be allowed. The amount awarded for non-economic loss should be reduced from $127,000 to $9,500 and the amount awarded for future domestic assistance increased from $41,437 to $48,749. These changes will require adjustment to the amounts calculated for interest. We were informed that the respondent has already paid to the appellant 50 per cent of the damages awarded. To the extent that this might turn out to be an over-payment an order for restitution was sought. In the circumstances, it seems appropriate that the parties bring in short minutes of orders and furnish written submissions, if there is disagreement, about restitution and costs. I propose the following orders: 1. Appeal allowed; 2. Cross-appeal allowed; 3. The appellant within seven (7) days to file short minutes of orders. The parties within seven (7) days to file written submissions, if required, relating to costs and restitution. 54 GZELL J: I agree with Sheller JA. **********
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OWNERS- STRATA PLAN 156
GRAY
CITATION : OWNERS- STRATA PLAN 156 v GRAY [2004] NSWCA 304 revised - 8/09/2004 HEARING DATE(S) : 13 August 2004 JUDGMENT DATE : 3 September 2004
(1936) 55 CLR 499
(1998) 28 MVR 406
(1977) 138 CLR 563