Damages Awarded for Non-Economic Loss Under Civil Liability Act in 2017

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1 Court/ s Comments Pel-Air Aviation Pty Ltd v Casey [2017] NSWCA 32 Court of Appeal: Macfarlan JA Ward JA Gleeson JA Trial judge: Schmidt J Spinal injuries, injury to the right knee, PTSD, major depressive disorder, anxiety disorder and complex pain syndrome. Age: Unknown Employment: Nurse Treatment: Weekly group therapy, psychologist costs, psychiatrist costs and hospitalization. Pre- Medical History: Unknown 80% MEC (Trial ) Undisturbed on appeal Macfarlan JA (Ward JA and Gleeson JA agreeing): Pel-Air submitted that the primary judge s contingent assessment of Ms Casey s loss as 70% of the most extreme case if PTSD were excluded should be reduced to 50%. A judge s assessment of the magnitude of a plaintiff s non-economic loss is an evaluative decision, akin to a discretionary judgment. Hence, to challenge it successfully a high barrier needs to be surmounted. Mason J described the applicable rule in Wilson v Peisley (1975) 50 ALJR 207 at 214 as follows: The settled rule, then, is that an appellate court will not disturb a primary judge s award of damages for personal injury unless it is convinced that he has acted on a wrong principle of law or that he has misapprehended the facts or that the amount of damages awarded is so inordinately low or so inordinately high as to be a wholly erroneous estimate of the damage suffered. In light of the psychiatric evidence, which referred to the difficulty of disentangling Ms Casey s conditions, her Honour was entitled to conclude that without her PTSD condition Ms Casey s position would not be significantly better than it is _1 1

2 Court/ s Comments Optus Adminstration Pty Ltd v Glenn Wright bht James Stuart Wright [2017] NSWA 21 Court of Appeal: Basten JA Hoeben JA Gleeson JA Trial judge: Campbell J PTSD Age: Unknown Employment: Call centre operator, recruitment officer Treatment: Hospitalisations and medication. Pre- Medical History: Unknown 75% MEC (Trial ) Gleeson JA would have allowed 75%. Basten JA and Hoeben JA allowed the appeal on liability by Optus, and therefore did not consider damages. Gleeson JA would not have allowed the appeal and would have upheld the allowance of 75%. Optus submitted that an assessment of 75% was out of proportion to the evidence and incompatible with awards in comparable cases. His Honour noted that such awards can be taken into account under s17a of the Civil Liability Act. Whilst accepting that the plaintiff s condition was obviously serious, Optus submitted that he was not in a near-catastrophic category as the trial judge had found. Optus complained that the trial judge did not give any reasons for preferring the evidence of Dr Klug, a medico-legal psychiatrist, over the opinion of Mr Wright s treating doctors. Optus submitted that a proper assessment would have been 40% MEC. Gleeson JA oncluded that while the assessment of 75% of a most extreme case may be considered generous, Optus did not suggest that his Honour erred in the application of principles under s.16 CLA and therefore he was not satisfied that the assessment was manifestly erroneous _1 2

3 Court/ s Comments South Western Sydney Local Health District v Sorbello [2017] NSWCA 201 Court of Appeal: Macfarlan JA Meagher JA Simpson JA Trial judge: Schmidt J Mental harm. Age: Unknown Employment: Unknown Treatment: Psychological/psychiatric treatment. Pre- Medical History: The plaintiff had suffered a previous episode of depression and excessive alcohol consumption for a period of six months following a motor vehicle accident. 35% MEC (Trial ) Undisturbed on appeal The key issue on appeal focussed upon the divergence of medical opinion and how the Court deals with those competing views in assessing NEL. The Court discussed the difficulty when a party seeks to challenge an award based upon the acceptance of one expert opinion over another. Simpson JA (Macfarlan JA and Meagher JA agreeing): The primary judge had to select between the competing opinions of three psychiatrists and one psychologist It is the function of a trial judge to assess evidence, including that of experts, using whatever tools are available in the circumstances... Her Honour was obliged to exercise her judicial function, and entitled to accept the opinions of Dr Allnutt and Ms Luca in preference to those of Dr Brown, and no basis has been established for departing from her assessment _1 3

4 Court/ s Comments Bridge v Coles Supermarkets Australia Pty Ltd (No 3) [2017] NSWSC 1800 Supreme Campbell J Peri-prosthetic left hip fracture requiring a complete revision of the hip replacement. Age: 53 and 10 months at time of injury Employment: Plant Operator Treatment: Hospitalisation, crutches and splint and medication. Pre- Medical History: Injured his back driving a scraper (1993). Injured his shoulder tying down a load on a truck, which led to a rotator cuff repair operation, and began experiencing hip pain (1998). This gradual deterioration led to a total replacement of his left hip (2003). Sustained injuries to his neck, left shoulder and arm at work whilst unloading a truck (2011). Has more recently experienced some numbness to his left hand. 36% MEC Campbell J accepted that the plaintiff continued to suffer significant ongoing pain and other symptoms and that he had suffered a consequential psychiatric condition because of the negligence of Coles, bearing in mind his past history of a degree of depression due to unemployment. He noted the injuries had a significant impact on the plaintiff s social life evidenced by the fact that he no longer had friends around, didn t go to the beach with his wife and scarcely engaged in his former hobbies of motorcycle riding and rock fishing. His Honour went on to state: Section 16 requires the making of an evaluative judgment which is in part a matter of degree, impression and judgment. Bearing in mind the consequences that have flowed from Mr Bridge s injury, subject to the consideration that he already had a prosthetic hip which would have inevitably required replacement and revision, albeit of a less difficult and extensive kind to that now in store (if it can be done at all), and taking his age into account, I assess the severity of his non-economic loss expressed as a proportion of a most extreme case as 36% _1 4

5 Court/ s Comments Bruce v Apex Software Pty Limited trading as Lark Ellen Aged Care [2017] NSWDC 237 District Dicker SC DCJ Fracture of right elbow, fracture of left wrist, evulsion fracture of posterior cruciate ligament in right knee, lacerations to nose and lip. There was a dispute as to whether a tear of right shoulder rotator cuff tendon was a pre-existing condition. Age: 70 years at the time of the incident Employment: Retired Treatment: Hospitalisation, physiotherapy. Pre-injury Medical History: Problems with right knee and right hip. Right knee surgery in April Total right hip replacement performed in % MEC Dicker SC DCJ noted the plaintiff had some continuous minor problems with her right knee and significant restrictions with her right arm and shoulder which caused her pain and limitations. Although the plaintiff was 70 at the time of the accident, the evidence showed her to be active, caring in relation to her elderly father and a person who undertook most of the inside domestic services for herself, her husband, her daughter and her daughter s three daughters. She was described as a person who was vigorous and active and got on with the job who had been substantially affected by her limitation. The plaintiff s age was submitted as relevant to the assessment of damgaes. His Honour noted that age was only one of the numerous matters the Court takes into account in assessing non-economic loss. Reference was made to Windeyer J s remarks in Thatcher v Charles [1961] HCA 5 that No two injuries are really the same; and the consequences of apparently similar injuries vary infinitely for different individuals. Thus amounts given in different cases may be harmonious on principle, although appearing disproportionate when the physical injuries alone are regarded. Measuring in money such things as pain and suffering or the impairment of capacity to lead life to the full really involves dealing in incommensurables. It is an attempt to weigh imponderables _1 5

6 Court/ s Comments Hobson v Northern Sydney Local Health District [2017] NSWSC 589 Supreme Harrison J Paraplegia. Age: 24 years old at time of incident Employment: Studying veterinary nursing Treatment: Unknown 85% MEC The Court accepted that the magnitude of the plaintiff s injuries for a young man justified a significant award towards to high end of the most extreme case, albeit also acknowledging some medical evidence suggesting the possibility of future improvement. As per Harrison J: Pre-injury Medical History: Noonan Syndrome, a genetic disorder that prevents normal development in various parts of the body. Mr Hobson is significantly disabled. His life expectancy has been relevantly reduced by the effects upon him of his paraplegia. He was formerly active within the confining limits of his respiratory restrictions and associated consequences of his Noonan Syndrome. Even so, he might reasonably have expected to enjoy a considerably enhanced and improved lifestyle and physical existence following corrective surgery if his paraplegia had not intervened. His non-economic loss is therefore permanent and severe. I do not consider that Mr Hobson s loss equates to a most extreme case. It is however my opinion that his original assessment of 85 percent was entirely accurate _1 6

7 Court/ s Comments Hitchen v Strategic Formwork Pty; Hitchen v RTS Holdings Pty Ltd [2017] NSWSC 75 Supreme Harrison J Incomplete paraplegia. Age: 24 at time of incident Employment: Labourer, gym instructor, graduated University in teaching Treatment: Months in hospital Pre-injury Medical History: No significant prior injuries 70% MEC Again the Court was faced with a plaintiff with significant injuries incurred at a young age. Here there was dispute as to the extent of capacity for improvement and to live his life. Per Harrison J: The plaintiff submitted that the appropriate amount should be assessed at 75% ($445,500) while Strategic Formwork submitted it should be assessed at 40% ($237,500). Strategic Formwork submitted that although the plaintiff has not been able to pursue life with quite the same vigour as he had prior to the accident he continues to lead an active and fulfilling life albeit it with some restrictions and discomfort. He drew attention to the fact that the plaintiff has maintained his relationship with Roxy, travelled to Ibiza, Spain New York for a weekend and the Glastonbury Music festival. He was able to move to Manchester, complete a Masters degree, pursue a career and has social and sporting interests. His Honour noted that the plaintiff suffered pain, spent months in hospital, suffered from weakness in his left leg, was prone to falls and had bladder function and other problems. Despite his ability to live life this ongoing pain and suffering warranted a higher award _1 7

8 Court/ s Comments Oberlechner v Hornsby Shire Council [2017] NSWSC 23 Supreme Adams J Fractured left hand and wrist, fractured right ankle, fractured ribs, several soft tissue injuries, PTSD, exacerbation of previous depressive disorder. Age: Unknown Employment: Seasonal Lawn maintenance and gardening Treatment: Future ankle operation. Pre-existing medical history: Diagnosed with Idiopathic Pulmonary Fibrosis in 2015 (reduced life expectancy), previous depressive disorder. 30% MEC This matter considered a case involving a plaintiff with a number of fractures, one requiring surgery, albeit where the evidence indicated a measure of reasonable recovery. Adams J stated: I am satisfied that the continuing physical discomfort and limitations, which have the effect of preventing the plaintiff from undertaking even that level of gainful employment which his psychiatric illness left him, and the exacerbation of his illness by PTSD, involve a severity of loss greater than 15% of a most extreme case. To this should be added the excruciating pain and extreme anxiety he first suffered in the hours following his fall (which substantially caused his PTSD that, in turn, with the physical consequences, negatively impacted on his residual capacity for work _1 8

9 Any Questions? Leighton Hawkes Principal Leighton has over 10 years experience in the insurance industry, including past experience in claims management and technical roles with a major insurance company. Leighton represents various global and national insurers, defending occupiers liability claims (on behalf of shopping centres, supermarket chains and private home owners), product liability claims, first and third-party property damage claims and recovery, contract works and construction liability exposures. He also regularly advises on policy interpretation. P: E: l.hawkes@mccabes.com.au _1 9