Edward Joseph VELLA v Chizuko SUGITA [2002] NSWCA 33 (15 February 2002)

Last Updated: 26 February 2002

NEW SOUTH WALES COURT OF APPEAL

CITATION: Edward Joseph VELLA v Chizuko SUGITA [2002] NSWCA 33

FILE NUMBER(S):

40012/01

HEARING DATE(S): 06/12/2001

JUDGMENT DATE: 15/02/2002

PARTIES:

Edward Joseph VELLA v Chizuko SUGITA

JUDGMENT OF: Sheller JA Beazley JA Foster AJA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC7656/99

LOWER COURT JUDICIAL OFFICER: Price J

COUNSEL:

J D Hislop QC / D Ronzani - Appellant

J S Drummond - Respondent/Cross-Appellanat

SOLICITORS:

Henry Davis York - Appellant

Hartmann & Associates - Respondent

CATCHWORDS:

Appeal against verdict and judgment in favour of respondent.

LEGISLATION CITED:

Motor Accidents Act, 1988 (NSW)

DECISION:

1. Appeal upheld; 2. Cross-appeal dismissed; 3. Verdict and judgment in the Court below be set aside; 4. There be substituted verdict and judgment for the respondent in the amount of $224,707.00; 5. The respondent to pay the appellant's costs of the appeal and cross-appeal; 6. The respondent to have a Certificate under the suitor's Funds Act, if otherwise entitled.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40012/01

DC7656/99

SHELLER JA

BEAZLEY JA

FOSTER AJA

FRIDAY, 15 FEBRUARY,2002

EDWARD JOSEPH VELLA v CHIZUKO SUGITA

Judgment

1 SHELLER JA: I have had the benefit of reading in draft the judgment prepared by Foster AJA. The trial Judge, his Honour Judge Price, assessed the damages for non-economic loss on the basis that the severity of the loss was 37 percent of a most extreme case: see s79A of the Motor Accidents Act 1988.

2 The trial Judge found that the appellant sustained a crush fracture of the T12 vertebra with loss of vertebral height over the anterior vertebral body estimated to be between 40 percent and 45 percent as a result of the motor vehicle accident which took place shortly after the plaintiff turned thirty. His Honour said that the medical practitioners who had examined the plaintiff most recently, Professor Higgs, Professor Ehrlich and Dr Evans, shared the common view that the plaintiff had a permanent disability of back function which may worsen. Professor Higgs said that the plaintiff had made a most satisfactory recovery from her injury but continued to suffer from symptoms. There was a mild disability of thoracic-lumbar (back) spinal function. She suffered from a permanent disability of her back function but the Professor was of the opinion that her condition could not be described as having stabilised and her progress could be described using the term "static". He said there was no evidence of any intervertebral disc degeneration. However, such degeneration usually commences at the age of approximately twenty-four as part of the normal aging process and might be accelerated as a consequence of the T12 injury.

3 Professor Ehrlich said that the plaintiff had a fracture with a slight displacement which accounted for her ongoing pain. He said that "she was rather stoical about this and tended, if anything, to minimise her complaint." There was a prospect as a result of her fraction that the ongoing pain would get worse "because due to the slight displacement of the fractured bone, there is a high likelihood of early development of adjacent degenerative changes of spondylotic type."

4 Dr Evans said the plaintiff's back pain was lumbar and lower thoracic on both sides. She complained that symptoms were increased by prolonged sitting or prolonged walking. Cold weather made her back ache as did rainy weather. He concluded as follows:

"The prognosis is for persisting symptoms at much the same level. It is reckoned that if one loses more than half of the anterior height of the vertebra in a flexion injury the arthritic change comes later in the apophyseal joints of that level and chronic backache ensues. She is just on this limit and I think she will have continuing problems and probably slightly increasing problems with the passage of time."

5 The trial Judge said:

"The plaintiff's significant backache I am satisfied will worsen which will make work increasingly difficult for her, however, I do not conclude that she will be unable to work after age 50."

6 Mr Hislop SC, who appeared for the appellant, referred to the need to have regard to proportionality to a most extreme case. He took us in some detail through the medical evidence. He pointed out that at the trial the plaintiff gave evidence that she lived alone in a one bedroom apartment in Tokyo looking after herself and doing her own shopping and cleaning. She hoped to marry and have children. She was working full time and was doing two or three hours overtime which was quite manageable. It was submitted she was living a basically normal life. The appellant submitted that this was not a case of a person who was 37 percent of a most extreme case, the most extreme case being a quadriplegic who is really deprived of any useful involvement in the normal affairs of life. The plaintiff was involved in the usual way with all of the normal aspects of life. There was a prospect of some slight increase in her problems in later years. It was submitted that 25 percent of a most extreme case recognised the appropriate degree of proportionality.

7 The trial Judge had the opportunity to assess the plaintiff while she gave evidence. However, none of the doctors gave oral evidence. The Judge was entirely dependent upon their written reports. After careful consideration of the material I have come to the conclusion that the percentage adopted by the trial Judge was too high. Had I been hearing the matter at first instance I would have considered 25 percent an appropriate figure. However, giving due respect to the trial Judge's assessment, and that of my colleagues, I am prepared to accept the percentage that Foster AJA proposes.

8 Otherwise, I agree with the orders that his Honour proposes for the reasons he has given.

9 BEAZLEY JA: I agree with Foster AJA.

10 FOSTER AJA: This is an appeal from a decision of Price DJC given on 8 December 2000. His Honour found a verdict and judgment in favour of the respondent in the amount of $285,465.00 being made up as follows:

Non-economic loss 37% $105,000.00

Out-of-pocket expenses $ 2,972.00

Parents' airfares $ 2,800.00

Past economic loss $ 17,986.00

Future economic loss $132,036.00

Future treatment $ 25,559.00

Less credit under s 45(4) of the MAA $ 888.00

$285,465.00

11 The components of this verdict which are challenged in this appeal are: non-economic loss, future economic loss and future treatment.

12 By her cross-appeal the respondent challenges the trial judge's reasoning in relation to one aspect of the award for future economic loss and, as a result, the amount awarded.

13 Before dealing with the submissions advanced in the appeal, it is convenient to set out certain matters by way of background. The respondent, a citizen of Japan, was born on 19 August 1966. She completed her schooling in that country and undertook further studies in industrial design. After receiving qualifications in that area, she was employed in industrial design and architectural businesses, finally being trained and qualified as a Computer Assisted Design operator, which specialised skill became her source of income. She held a number of positions in this area of skill, in Japan, between the years 1991 and 1996.

14 On 8 July 1996 she came to Australia, on a twelve months visa, with the object of studying the English language, in order to further her career. She enrolled in an appropriate course, but on 13 October 1996 was involved in the motor vehicle accident which is the subject of these proceedings. She was a front seat passenger in one of the vehicles involved and suffered seat belt injuries in the collision, the most serious of which was a wedge fracture of the T-12 vertebra which has been described in the medical evidence as "2 column fracture of the vertebral body, without posterior displacement or encroachment on the bone spinal canal." The nature of this fracture and its effect upon her well-being, enjoyment of life and earning capacity was the subject of considerable evidence in the case, which was referred to extensively by his Honour in the judgment under appeal.

15 His Honour was obviously impressed by the respondent as a witness. He accepted her evidence. He was satisfied that her complaints were genuine. In his judgment he said:

"The plaintiff impressed me as being sincere and candid. She did not exaggerate. I accept the evidence she gave as to her injuries and disabilities and the difficulties she has experienced at work. I also accept her evidence as to what she would have done if she had not been injured. She has I conclude endeavoured to deal with the continuing pain she experiences with courage and stoicism."

16 The respondent, before the accident, had led a pleasant life. She engaged in some sporting activities and enjoyed overseas travel. She was healthy and pain-free. She was able to do her work without difficulty and undertook remunerative overtime. She was single and self supporting. She intended to work beyond age 50, probably up to age 60. There appears to be no reason why, had she been uninjured, she would not have had a work-life of such a duration. The changes in her enjoyment of life and earning capacity occasioned by the accident were the subject of considerable evidence, to which I shall make some reference when considering the particular grounds of appeal.

17 The respondent gave evidence by way of tender of a written statement, further oral evidence-in-chief and cross-examination. Numerous medical reports were tendered. No oral evidence was given by any medical practitioner, a fact which, obviously, made more difficult the task of evaluation of the plaintiff's present and future condition, resulting from the injury.

18 I turn to consider the grounds of appeal.

19 Non-economic loss

The amount awarded by his Honour was based upon his finding that the respondent's injuries and disabilities resulting from the accident constituted 37% of a most extreme case. (Motor Accidents Act, 1988 (NSW) s 79A). It has been submitted by the appellant that this evaluation was excessively high, being outside any reasonable range for such an assessment.

20 His Honour, after an extensive review, in his judgment, of the plaintiff's evidence and the medical evidence on both sides, said:

"The plaintiff has lost between 40% to 45% of the anterior height of the vertebra. It is more probable than not, I am satisfied, that she will suffer early development of degenerative change and the significant back pain presently experienced will over time worsen."

Dr Meachin assessed the plaintiff as having 15% permanent loss of her back as compared to a most extreme case, Professor Ehrlich estimated her level of disability as being of the order of 20% of a "worst case". The plaintiff at the relatively young age of 34 faces however a deteriorating future. She was at the time of the accident a fit active enthusiastic young woman who enjoyed a range of sporting activities and international travel. Those activities are no longer available to her and her position will worsen. I have accepted her evidence of her past and present complaints as genuine. The plaintiff has suffered significant injury and continuing disability.

The plaintiff's enjoyment of life has been and will continue to be adversely affected. An assessment of 20% of a most extreme case underestimates in my view the plaintiff's non economic loss. I assess the severity of the non economic loss (as a proportion of a most extreme case) to be 37%. Damages for non economic loss accordingly are $105,000.00."

21 As indicated, it is the appellant's contention that this is an appellable over estimate. The appellant submits that the evidence does not support a finding higher than 25% of a most extreme case ($18,500.00).

22 The Court was taken, in argument, to portions of the evidence bearing upon the nature of the plaintiff's injury, its current effects upon her and its prognosis.

23 In the plaintiff's evidence she gives a history of continuous back pain in the area of the fracture which has interfered with her enjoyment of life and her ability to work. It is clear that the posture adopted by her in operating the apparatus used in the creation of Computer Assisted Diagrams occasions pain in the area of her fracture which has resulted, currently, in her being forced to undertake work where less overtime is offered. In her statement she gives details of pain and difficulties experienced by her in the four years since the accident. She describes her present position, as follows:

"73. I would also like to resume my travels if possible. At present I suffer increased pain if I have to sit in a plane, train or car for more than an hour or two. The longer I sit the more the pain increases. I am also restricted in my activities. I am no longer able to resume surfing, tennis, golf and some social activities which I pursued before the accident. Since the accident I swim approximately once per week in order to assist my back at a cost of 300 Yen per visit. I also undertake an exercise program at home as advised by my Doctor and Physiotherapists.

74. Prior to the accident I played golf approximately two to three times per year. I would also attend at a driving range on a more frequent basis to practice my golf.

75. I also played tennis since I was at school on a social basis. Prior to the accident I would play approximately once every two to three months.

76. Although I ceased surfing when I was twenty-five (25), it was a sport which I undertook approximately two to three times per month from the age of nineteen (19). Together with my friends we would surf throughout the year including the winter months. I had my own surfboard and wet suit. I have also in the past owned my own car and a motorbike to travel from my home to college.

77. I continue to have daily pain in my back. It is present when I wake up in the morning and depending on my activities the level of pain will increase during the day. As stated previously if I have to work overtime the level of my pain increases. When I return home from work I do my floor exercises or lie down to reduce the pain. I have difficulty in bending over to put on either my shoes or socks. Although I can carry shopping bags I have difficulty if they are very heavy. I have difficulty in cleaning my apartment including the bathrooms, making my bed, vacuuming and doing the washing."

24 It is plain, from the medical evidence, that early optimism about recovery from the fracture has not been borne out. It is reasonable to base the assessment of her present and future condition upon reports from examinations conducted close to the hearing. Doctor J K Evans, who provided a report for the defendant, on 1 November 2000, noted that the plaintiff's present complaints were back pain in the lumbar and lower thoracic regions on both sides, the symptoms increasing with prolonged sitting or prolonged walking. Cold and rainy weather made her back ache. He noted that "the main thing that she cannot do that she would like to do is to play sport."

25 Dr Evan's prognosis was for persisting symptoms at much the same level. He said:

"It is reckoned that if one loses more than one-half of the anterior height of a vertebra in a flexion injury then arthritic change comes later in the apophyseal joints at that level and chronic backache ensues. She is just on this limit and I think she will have continuing problems and probably slightly increasing problems with the passage of time."

26 Dr Ehrlich, a rehabilitation specialist, who provided a report on behalf of the plaintiff, on 30 October 2000, expressed the view that the plaintiff had a fracture with slight displacement, which accounted for her on-going pain and that she was rather stoical and tended to minimise her complaints. There was a prospect of this pain getting worse "because, due to the slight displacement of the fractured bone, there is a high likelihood of early development of adjacent degenerative changes of spondylitic type". He considered that she was "left with permanent back disability in the form of pain and reduction of movement which interfered with her working capacity as a CAD operator which interference might become worse with the passage of the years." His Honour found that Dr Ehrlich's prognosis was somewhat over-pessimistic. However, it is sufficiently clear that the medical evidence indicated a likely worsening of the plaintiff's condition with time, due to degenerative changes in the area of the fracture.

27 It must be borne in mind that the plaintiff will have to bear the increasing pain of the back injury for a considerable period of time, having regard to her relatively young age.

28 After reading the medical evidence and making due allowance for the fact that the trial judge had the opportunity of observing the plaintiff, I have, after some hesitation, come to the view that an assessment of 37% of the most extreme case is outside the range of a proper exercise of the trial judge's discretion. It lacks due proportionality, having regard to what is involved in a most extreme case. This aspect of the award should be set aside. I consider that reassessment is possible. In my opinion, the greatest percentage that can reasonably be awarded is 31%. I propose therefore that this percentage be substituted for the trial judge's finding. This results in an award under this head of the plaintiff's claim, calculated in accordance with s 79A and the present maximum of $296,000, in the sum of $77,000.

29 Cost of future treatment

It was submitted on behalf of the appellant that the evidence did not establish any need for future treatment by way of massage and that his Honour should have made no award in this regard. Counsel for the appellant took us to passages in the medical evidence which indicated that no further physiotherapy was required, the plaintiff having received such treatment on a temporary basis after the accident. However, in my view the plaintiff's own evidence makes it plain that she attends a masseur with some regularity, in Japan, specially when her working conditions have been productive of a high level of pain in her back. Quite obviously she obtains some comfort and assistance from massage of the affected area. I have formed the strong impression that the references to physiotherapy in the medical reports contemplate something more than the application of massage by a masseur, who need not necessarily be a trained physiotherapist. His Honour was not helped by oral elucidation of these passages in the medical reports. I am satisfied that he was entitled to act upon the plaintiff's own evidence and accept that her expenditure on massage was reasonable and caused by the accident. It may be noted that, in any event, he adopted a conservative approach and allowed only half her claim. In my view, no appellable error has been demonstrated.

30 It was but faintly argued that his Honour's award in respect of the on going cost to the plaintiff of swimming should be set aside. The evidence indicated sufficiently, in my view, that it was of therapeutic benefit to the plaintiff that she swim regularly and continue to do so throughout her life. I am satisfied that his Honour's award in this respect should be upheld.

31 The appeal in respect of future costs should, in my opinion, be rejected.

32 Future economic loss

It is conceded that the appeal should be upheld in respect of his Honour's award, as an acknowledged mathematical error occurred. His Honour approached this aspect of the plaintiff's claim by considering her losses in respect of her reduced ability to earn overtime because of her back condition, up to age 50, and considered separately what the situation would be after she achieved that age. Having regard to matters which have not been agitated in the appeal, his Honour was satisfied to accept that the plaintiff, if uninjured, would have worked until age 57 as a CAD operator.

33 The division of her working life into these two periods was, apparently, based upon the evidence of Dr Ehrlich that she would "have to be determined to work" after age 50 having regard to the anticipated deterioration in the condition of her back around the fracture site.

34 His Honour made an award of $71,596.00 to cover the period from the date of the accident until age 50. There is no appeal in respect of this award.

35 However, his Honour awarded a further $60,440.00 for the period from age 50 to age 57. Unfortunately, his Honour, in making this calculation, failed to make allowance for the fact that this period of loss would not commence for 16 years. It was conceded, in the appeal, that this was an appellable error, and if this allowance had been properly made, the figure for this period, on his Honour's method of calculation, should be reduced to $27,682.00.

36 However, counsel for the respondent seeks to overcome this reduction in the amount awarded to his client by submitting that his Honour was in error in his general approach to this calculation and that, had he adopted the correct approach, the plaintiff would have been entitled to an award for this period in excess of the amount of $27,682.00.

37 His Honour arrived at the amount awarded by employing the following reasoning. He stated:

"The plaintiff's inability to undertake overtime work will upon the probabilities increase. She is currently working 2 to 3 hours per week overtime. I conclude that after age 50, she will upon the probabilities be unable to work any overtime at all. Doing the best I can, I propose to allow 9 hours per week to age 57 years, ie 7 years discounted by one year for the possibility of periods of unemployment and the unavailability of overtime work ie 6 years."

His Honour then made a calculation which has not been attacked except on the basis already referred to.

38 It is apparent from his Honour's judgment that he adopted this approach by accepting Professor Ehrlich's opinion that a reduction in the plaintiff's ability to work would occur from age 50 onwards. He was not, however, prepared to accept that the plaintiff would be unable to work after that age. Indeed Dr Ehrlich's opinion was not as extreme as that . He said only, in effect, that it would require some fortitude on her part to continue to work after that age. His Honour regarded this opinion, in any event, as being "over pessimistic", having regard to the evidence of Dr Evans. His Honour took a middle course. He said:

"The plaintiff's significant backache, I am satisfied, will worsen which will make work increasingly difficult for her, however, I do not conclude that she will be unable to work after age 50. She will increasingly be unable to undertake available overtime work and have to take time off work following a long work day."

39 It is apparent that his Honour's allowance of 9 hours per week in the passage cited above is based upon a view that, had she been uninjured, the plaintiff would have been able to work 9 hours per week overtime in the latter period. This view was, I am satisfied, open on the evidence.

40 It is submitted on her behalf, however, that his Honour should have taken a different approach to assessing her loss in this period. He should have approached the question by considering what was the possibility, expressed as a percentage, of the plaintiff being unable to work at all after age 50. On the basis that there was a 50% possibility of this eventuality occurring, the plaintiff, in his submission, should have been awarded $90,682.00. On an alternative basis that there was a 30% possibility, an appropriate award would have been $54,409.00.

41 It was submitted that the trial judge was obliged to adopt this approach because of the reasoning of the majority in Malec v J C Hutton Pty Limited [1990] HCA 20; (1990) 169 CLR 638 at 642-3. I am not persuaded that his Honour was so obliged. In my view, he has done no more than assess damages for this period "in terms of the degree of probability of events occurring", namely whether worsening of the plaintiff's back condition would affect her ability to work and if so to what extent. His assessment of the probabilities led him to the view that she would not be prevented from working entirely but would be limited in her ability to work overtime to the extent that he then assessed. I am not persuaded that in adopting the approach he did, his Honour committed any appellable error.

42 In my opinion, the cross-appeal should be dismissed. The appellant should succeed on the appeal to the extent already indicated. The result is that the respondent's award of damages must be reduced by $60,758.00.

43 Accordingly, I propose the following orders:-

(a) Appeal upheld.

(b) Cross-appeal dismissed.

(c) Verdict and judgment in the Court below be set aside.

(d) There be substituted verdict and judgment for the respondent

in the amount of $224,707.00.

(e) The respondent to pay the appellant's costs of the appeal and

cross-appeal.

(f) The respondent to have a Certificate under the Suitor's Funds Act, if otherwise entitled.

LAST UPDATED: 22/02/2002