Olson v French[1997] QCA 84

IN THE  COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Brisbane

Appeal No. 2702 of 1996

BETWEEN:

PATRICK KARL OLSON

      (Defendant) Appellant

AND:

YVONNE FRENCH

      (Plaintiff) Respondent

Davies JA

McPherson JA

Mackenzie J

Judgment delivered 22/04/1997.

Judgment of the Court

APPEAL DISMISSED WITH COSTS TO BE TAXED

CATCHWORDS: PERSONAL INJURIES - motor vehicle accident - whether award of damages for pain, suffering, loss of amenities and economic loss excessive - impact of likelihood of recovery from psychiatric condition on future economic loss.

Counsel:  Mr J. Griffin QC, with him Mr R.M. Stenson for the appellant.

   Mr S. Williams QC, with him Mr G. O'Grady for the respondent.

Solicitors:  Dillons for the appellant.

   Taylors for the respondents.

Hearing date: 7 April 1997

IN THE  COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Brisbane

Appeal No. 2702 of 1996

Before Davies JA

  McPherson JA

  Mackenzie J

BETWEEN:

PATRICK KARL OLSON

      (Defendant) Appellant

AND:

YVONNE FRENCH

      (Plaintiff) Respondent

REASONS FOR JUDGMENT - THE COURT

Judgment Delivered  22 April 1997

This is an appeal against a District Court Judge's assessment of damages of $126,730 for the consequences of a motor vehicle accident in which the respondent was injured.  The components for pain, suffering and loss of amenities and economic loss are alleged to be excessive.  Mr Griffin QC for the appellant expressly said that there was no challenge to the findings of fact of the learned trial judge.

The immediate consequences of the accident to the respondent were pain in the neck, chest and right shoulder, and a sensation of pins and needles and subsequent weakness in the right arm and hand.  Soft tissue injuries to the chest and whiplash injuries to the cervical spine were diagnosed. 

She returned to work 3 days after the accident but experienced severe pain while sitting and difficulty walking and moving about.  The pins and needles sensation in her right arm continued and she suffered an increase in migraines, to which she had previously been subject.  The pain remained severe for 3 months then reduced over a 12 month period to a level which persisted to the time of trial.  By the time of trial she was relatively pain free if she did not exert herself, but exertion, and sitting for sustained periods at work brought on neck, chest and shoulder pain.  The consequences of the accident affected her domestic and social life. 

The respondent worked as a telephone sales representative selling to existing customers at the time of the accident.  She had been a high achiever.  Soon after the accident she became aware that she was suffering a personality change and was struggling to do the job she had previously done well.  She believed that the sales manager was spying on her.  This was not the case and in fact the sales manager was not aware that the respondent was suffering difficulties in coping.  However a sales supervisor did notice emotional changes in her. 

Because she felt she was not coping she left that job and almost immediately obtained another job which she found unsatisfactory, although she had gone into it with hopes that it might prove at least as lucrative as the previous position.  Towards the end of that employment she applied for her old job but was told that there were no positions available.  She obtained another job almost immediately and held it at the time of trial.  It involved selling motor vehicle and household insurance by telephone.  It involved less pressure than her original job and she was able to cope with it. 

The learned trial judge accepted the respondent as a candid, truthful and accurate witness.  He accepted that she was not capable of working in her original employment except at the cost of unreasonable stress.  The medical evidence for the respondent, which the learned trial judge preferred to that for the appellant, was that the plaintiff's injuries had probably resolved as much as they would.  She had a 5 per cent permanent disability of the whole spine and 7½ per cent loss of effective functioning of the thoracic function of the thoracic cage.  The learned trial judge also accepted evidence of a psychiatrist that the respondent suffered from a psychiatric illness caused by the accident and not contributed to by other factors.  The psychiatrist estimated that with counselling for about 2 years she had a 70 per cent chance of recovery to something like normal. The learned trial judge assessed future economic loss at $65,000 comprising $20,000 for the first 2 years based on $220 per week net loss and $45,000 for a further 25 years based on the 30 per cent possibility that she would not achieve her full pre-accident potential into the future.  Mr Griffin QC submitted that it was inappropriate to base compensation for future economic loss on the inability to do the kind of work she was performing at the time of the accident for the whole of her working life.  It was conceded that by allowing 27 years to age 55 there had been adequate allowance for the ordinary vicissitudes of life.

However it was submitted that further allowance should have been made for other factors.  One of these was that events had occurred in the respondent's childhood and married life which, it was submitted, pre-disposed her to stress.  It was submitted that even if the accident had not occurred, some stressful event may have operated upon this pre-disposition and caused her to become unable to do the kind of work she was doing before the accident.  It was submitted that this had not been allowed for.  The evidence from the psychiatrist was to the effect that a dramatic event would be required to precipitate such a situation.  The learned trial judge accepted his evidence that the respondent had weathered major distressful  incidents during her marriage and found that her post-accident condition was not caused in any substantial way by those factors.  Mr Williams' submission that any pre-disposition should be regarded as slight is supported by those matters.  Another was the possibility she may have achieved promotion in her present employment.  It was conceded that the prospect of promotion or obtaining a better job elsewhere had been taken into account in the component for the first 2 years after trial but it was submitted that no allowance had been made for that in the component relating to the last 25 years of working life.  Mr Griffin also sought to attach significance to the fact that the respondent continued to work in her original job for some months after the accident and tried to get it back when her next employment was unsatisfactory.  There was evidence that she had left because she could not cope, and that she felt at the time of trial that she would not be able to cope with a job of that kind.  Further, the accident had left her more vulnerable to stress.  So far as the prospect of promotion is concerned, the evidence was that a superior officer believed that the respondent "could progress if she wished to" into other roles with the company.  He agreed there was no pressure to do so.  

Where the likelihood of recovery from a psychiatric condition is critical to the assessment of damages there is inevitably a risk that there will be over-compensation or under-compensation depending on whether the restoration to normality occurs in accordance with the prediction or not.  In the present case the respondent's ability to return to the kind of employment she had at the time of the accident depends on a resolution of the psychiatric consequences of the accident (subject to her increased vulnerability to stress in future as a result of the accident).  The possibility that she might be promoted by her present employer or that she might obtain a better job elsewhere must be acknowledged, as must the risk that she may do worse.  Given the inherent imprecision in the assessment of future economic loss in this kind of case, it cannot in my view be demonstrated that any significant adjustment of the award for future economic loss is required. So far as the award for damages for pain, suffering and loss of amenities is concerned  Mr Griffin submitted that $15,000 to $20,000 was appropriate.  We are satisfied that, having regard to the respondent's history set out above, particularly her residual disabilities in the spine and thoracic regions and her psychiatric condition, that range is too low.  On the other hand, the award of $45,000 appears to exceed the appropriate range.  It is not necessary to quantify a precise amount for the award because an appropriate reduction to bring it within the proper range would not have a substantial effect on the total judgment (Elford v. FAI General Insurance Company Limited (1994) 1 Qd.R 258).  The appeal is dismissed with costs to be taxed.