JUBGMINT i'5 4277738 CATCHWORDS DAMAGES - appeal against adequacy of awards for general damages and loss of earning capacity - no new question of principle Browne v. Dunn (1894) 6 R. 67 (H.L.) Purkess v. Crittenden (1965) 114 C.L.R. 165 Watts v. Rake (1960) 108 C.L.R. 158 On Appeal from a single Judge of the Supreme Court of the Austral1ran Capital Territory ARMIN RAUBER Ve STANISLAW SAMOTY A.C.T. No. G90 of 1987 Coram: Gallop, Neaves and Spender JJ. Date: 5 August 1988. Canberra. RAL OER USTRALIA PRINCIPAL REGISTRY ~ IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY No. ACT G90 of 1987 DISTRICT REGISTRY GENERAL DIVISION ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: ARMIN RAUBER Appellant and Cross~-Respondent {Defendant) AND: STANISLAW SAMOTY Respondent and Cross~Appellant (Plaintiff) ORDER Gallop, Neaves and Spender JJ. Judges Making Order Date of Order 5 August 1988. Where Made Canberra. THE COURT ORDERS THAT: (1) The plaintiff's cross-appeal be dismissed with costs. {2) The defendant's appeal be dismissed with costs. Note: Settlement and entry of orders 1s dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY No. ACT G90 of 1987 DISTRICT REGISTRY were eS Se GENERAL DIVISTON ON APPEAL FROM A SINGLE JUDGE OF THE THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: ARMIN RAUBER Appellant and Cross~Respondent (Defendant) AND: STANISLAW SAMOTY Respondent and Cross-Appellant (Plaintiff) Coram: Gallop, Neaves and Spender JJ. Date: 5 August 1988. REASONS FOR JUDGMENT THE COURT: This 1S an appeal by the plaintiff, Stanislaw Samoty, against the adequacy of an assessment of damages made by the Supreme Court of the Australian Capital Territory (Miies C.J.). The plaintiff suffered injury on 28 October 1979 when the vehicle in which he was travelling as a passenger overturned near Bungendore in New South Wales. He had been wearing a seatbelt and was assisted by the driver from the vehicle by means of the rear hatch door. 2. The issues of liability for negligence, volent1 and contributory negligence were all resolved in the plaintiff's favour. On 17 December 1987, the learned primary judge assessed damages in the sum of $154,487.04, made up as follows: Pain and suffering $25,000.00 Past loss of earning capacity 58,412.04 Future loss of earning capacity 43,000.00 Out-of-pocket expenses 16,500.00 Future medical expenses 1,000.00 Future medication 2,000.00 Interest 8,575.00 On the following day, his Honour heard the parties further and ordered that interest be awarded on part of the award for past loss of earning capacity, 1.e. on $48,188.94 at 14% reduced by one half. The figure of $48,188.94 was the difference between the assessed past loss of earning capacity of $58,412.04 and an amount of $10,223.10 received by the plaintiff as social security payments. That interest component amounted to $16,182.20 which, when added to the proposed figure of $154,487.04, gave the sum of $170,669.24. Judgment was entered for the plaintiff for that sum, with costs. The unsuccessful defendant appealed against the award of damages as being unreasonably high, but the appeal was abandoned. The plaintiff cross-appealed on the ground that the damages awarded were inadequate. It was submitted that the award for loss of earning capacity for the future was too low and that the amount awarded by way of damages for pain and suffering was tnadequate. It must be said at the outset that the question of the assessment of damages was one of particular difficulty. 3. The evidence of the driver of the vehicle was that, when he assisted the plaintiff from the vehicle, his leg appeared to be badly cut below the knee, that he had difficulty breathing and he was "going into shock". He was, however, conscious, talking and walking. On admission to the Queanbeyan District Hospital, he was said to be alert and found to have sustained a laceration to the left kneecap and abrasions to the forehead and was complaining of tenderness across the chest. X-rays of the skull, chest and ribs were found to be normal and the hospital records indicate he was ambulating. He remained in hospital until 31 October 1979. This 1S to be contrasted with the plaintiff's account that he had lost consciousness in the accident; that he regained consciousness in hospital some days later, "screaming with pain"; and that, whilst in hospital, he was confined to a wheelchair. The tr1ral judge expressed something of the difficulty of the assessment of damages confronting him. He sald: "The plaintiff's credit as a witness both in Court and in his accounts to the many doctors who have seen him over the years is the major difficulty. I cannot recall having seen a person in a civil case behave in such a bizarre fashion in the courtroom. Such conduct has proved a difficult question also for the doctors. The medical assessment of his case 1s complicated by whether the plaintiff's symptoms can be accepted and iundeed to some extent whether those seeking to assess him feel sympathy for him or otherwise." His Honour found that the plaintiff lost no more than a week from work immediately after the accident and that he did not seek medical attention again unt2l 28 July 1980, when he complained to Dr Roach, his general 4. practitioner, of an irritable scar over his left patella and aches in the legs and shoulders. He made similar and further complaints on 6 August 1980, when he was very excited and talkative, demanding to see a specialist and blaming all his troubles on the accident. He made similar complaints and behaved in a similar way on 10 September 1980. Dr Roach was unable to persuade him that his physical injuries were essentially mild. Dr Roach felt that the plaintiff had developed an acute nervous agitation which "almost amounted to mild psycho-neurosis" which was "presumably ... mostly 1f not entirely due to the accident". The Calvary Hospital records suggest that Dr Roach had observed that, before the accident, the plaintiff had tended to exaggerate pain when he visited the doctor as his general practitioner. The plaintiff changed to another general practitioner, Dr Carter, on 12 September 1980, and has continued to see him since. Dr Carter characterised his role as acting as "mainly a repeat pill prescriber" when the plaintiff returns from visiting other doctors. He was referred on 25 September 1980 to a consultant physician, Dr Long, whose examination failed to disclose any physical cause for the symptoms. Dr Long felt that Mr Samoty's behaviour in the surgery was such that he was malingering. On 5 February 1981, he was referred to Dr Truman, a psychiatrist, who has continued to treat the plaintiff. He has, 1n fact, seen him more than 50 times. The 5. Plaintiff's condition appeared sufficiently serious to have him hospitalised in Calvary Hospital, where he was seen by a number of doctors who concluded that the plaintiff was suffering from a severe emotional disorder brought about by the trauma of the motor vehicle accident and presenting as a mixed anxiety depressive hypochondriacal neurosis. Dr Truman agreed with that conclusion. His Honour found that the plaintiff's condition had not appeared to have changed essentially since the middle of 1981, although there were some changes in intensity and emphasis. Various medication treatments were attempted, but with no significant long-term result. In October 1984, the plaintiff was once again admitted by Dr Truman to Calvary Hospital, where he remained for about a week. On 16 August 1985, he arrived unannounced at Calvary Hospital. He appeared at that time to be ina very agitated, paranoid state. Dr Truman was at the hospital at that time. The plaintiff had been referred by his solicitors to a Dr Ferguson, who then described himself as a "medico-legal assessor". Dr Ferguson first saw him on 7 December 1982. His Honour noted: "...1t appears that soon after the plaintiff was referred to him, Dr Ferguson took over to a substantial extent the management of the plaintiff's treatment." His Honour concluded that Dr Ferguson's assessment was "clearly based upon a total acceptance of what he was told by the plaintiff". It 1s apparent that his Honour regarded the evidence of Dr Ferguson with considerable reservation. 6. His Honour said in regard to the large number of doctors who gave evidence concerning the plaintiff, that: "Many of the doctors tendering advice in the present case have done so on an accepted history that the plaintiff suffered loss of consciousness over a period of some days immediately following his injury. This, however, 1S not supported by the objective evidence." He continued: "The present case also presents to an extraordinary degree a problem of credibility. The conclusions of some of the doctors are based upon a total acceptance of his complaints. The conclusions of others are based on a rejection of what he has had to say or at least considerable scepticism, and that 1s based partly on the bizarre presentation of the plaintiff and of his considerable lack of co-operation." His Honour specifically rejected that the plaintiff suffered brain damage as a result of the accident. Confronted with this array of medical views, his Honour made specific comment concerning the observations of two of the medical practitioners. He said: ",..Dr Chandran makes the perceptive remark that 'the organic illness has been reinforced by various people that he has seen and nobody has of course the courage to tell Mr Samoty that there 1s a large psychiatric component." He later said: "In a report from Dr Truman of 4 November 1985 there 1s a sentence which, I think, with one qualification, accurately sums up the situation: 'There was a tendency to use a lot of hyperbole which I do not think was exaggeration but just his attempt to emphasise how much distress he was suffering.' T£ the word 'malingering' replaces the word "exaggeration', I think that this 1s accurate. There 1s no doubt in my mind that the plaintiff does in fact exaggerate, and grossly exaggerates, but this 1S Dart of the ongoing problem." He said that the medical assessments depended, to a considerable extent, on assumptions, some of which were not made out by the evidence. 7. There was, 1n addition, a considerable amount of lay evidence at the trial relevant to the question of damages. The conclusion of the trial judge was: "I find that the plaintiff's minor physical injuries occurring as they did to a person with tendency towards hypochondriacal irritability, suspiciousness and eccentricity precipitated an emotional and psychological condition which has aggravated all those characteristics." As to the working history, the tr1al judge found that the plaintiff returned to work a week after the injury. He was able to work full-time unt1l the beginning of July 1981. His condition was such as to necessitate several weeks in hospital in the middle of 1981. He then worked part-time until about March 1983 and he has not worked since then. The trial judge said "I think he probably became unemployable in July 1983, and certainly so from 1985", and by 1985 his condition "appeared to be bordering on the psychotic". The trial judge said of the appellant, as at September 1983: "Tt 1s obvious to my mind that by that time the plaintiff had become convinced that all his troubles had been confirmed by the doctors, that he was not going to get any better, and that everything was due to the accident." The finding of most significance to the appeal is as follows: 'I think he will continue to be unemployable for some time into the future, but the diagnosis and prognosis of his condition 1s so beset with difficulties and hypotheses that it 1S impossible to be confident. However, I am not satisfied on the balance of probabilities that 1f he continues to be unemployable after a lapse of two years or so, then his unemployability can be materially related to the accident. I think that there must have been a good chance that he could have become like he 1s without the accident. I am of the view that I have to allow for the contingency that his symptoms will continue much as 8. they are beyond that period and to allow for the finding that 1f they do there will be some part of the further period at least in which the accident plays a part but a diminishing part." It was submitted on behalf of the plaintiff that the trial had been conducted by the plaintiff on the basis that he had suffered a severe psychiatric disorder as a result of the accident which was permanent, and that the defendant had conducted the trial on the basis that the plaintiff was a malingerer and that any psychiatric condition he was presently experiencing was unrelated to the accident. It was therefore submitted that, in the absence of any specific suggestion that his present condition would be other than permanent or that, independently of the accident, he would have been reduced to 1t, 1t was not properly open to the trial judge to find as he did. Reliance was placed on the principle of Browne v. Dunn (1894) 6 R. 67 (H.L.) and Purkess v. Crittenden (1965) 114 C.U.R. 165 explaining Watts v. Rake (1960) 108 C.L.R 158. Moreover, 1t was submitted that in the light of the findings as to the acceptability of the evidence of various of the witnesses, the trial judge was constrained to conclude that the plaintiff's psychiatric condition was caused by the accident and was permanent. On analysis, the plaintiff's submissions come down to the submission that the evidence before the trial judge was such that he was obliged to conclude that the plaintiff was, as a result of the accident, permanently unemployable; it was not open to the trial judge to conclude, as he did, that: "...IT am not satisfied on the balance of probabilities that 1f he continues to be unemployable after a lapse 9. of two years or so, then his unemployability can be materially related to the accident." In the context of both limbs of the plaintiff's submissions on this issue, the question of onus becomes very real. It will be remembered that on the question of the future employability of the plaintiff, the trial judge said: ",...the diagnosis and prognosis of his condition is so beset with difficulties and hypotheses that 1t 1s impossible to be confident." In our view, 1t very much overstates the position to say that the trial judge "accepted" the evidence of any particular witness as to the condition of the plaintiff. That his Honour referred to Dr Corry's "useful summary of the plaintiff's complaints", gave a qualified adoption of the view of Dr Truman as to whether or not the plaintiff was malingering, and accepted the description by Mr Petroni of the nature of the plaintiff's psychological condition, simply does not lead inexorably to the conclusion that the plaintiff was suffering from "a permanent condition caused by the accident", as was the thrust of the submissions by senior counsel for the plaintiff. Moreover, the conduct of the contending parties at the trial did not lead to a situation where his Honour was faced with a simple choice between black and white. The extent of the plaintiff's present mental condition, any pre-disposition to such an 1llness, whether in fact the accident initiated or aggravated the mental 1llness from which the plaintiff is presently suffering, the proqnosis of that condition and the extent to which the existence of such disease at times in the future can properly be attributed to the accident in 1979, were but some of the difficult 10. issues which the trial judge was called upon to resolve. His Honour was obliged to reach his conclusions on the whole of the evidence. A reading of his reasons indicates that he did that with sensitivity and care and, in particular, gave reasons why the weight properly to be given to the evidence of medical witnesses had to be qualified. In our view this is a case, of all cases, where the advantage of a trial judge in seeing the plaintiff and the other witnesses, including the medical witnesses, has to be properly acknowledged. The trial judge's conclusion "... the diagnosis and prognosis of his condition 1s so beset with difficulties and hypotheses that 1t 1S l1mpossible to be confident" was an assessment open to him on the Material before him. That he was unable on that material to conclude that the plaintiff was permanently unemployable cannot, we think, fairly be impeached. Nor do we think that, having regard to the onus that lies on a plaintiff in a civil tr1al claiming damages, the conclusion by the trial judge, viz. "I am not satisfied on the balance of probabilities that 1f he continues to be unemployable after a lapse of two years or so, then his employability can be materially related to the accident", was not also fairly open on the evidence. Since these conclusions, which formed the basis of the trial judge's assessment of the amount properly to be awarded for the future loss of earning capacity, are not shown to be erroneous, the plaintiff fails on that aspect of the appeal. 11, As to the amount for pain and suffering, it was simply submitted that, on the evidence, the amount of $25,000.00 was manifestly inadequate given the very gross change from the plaintiff's position before the accident to his position at trial. This component is, in a sense, associated with the conclusion as to the continuing effect of the accident on the plaintiff's mental condition. As was conceded, damages for pain and suffering are at large, and 1t seems to us in the light of our conclusions on the other aspect concerning the amount properly to be awarded for loss of earning capacity in the future, no reason has been shown for interfering with the amount awarded for pain and suffering. In the result, the plaintiff's cross-appeal should be dismissed with costs. The appeal by the defendant, which was not pursued before us, 1S also dismissed with costs. I certify that this and the preceeding ten pages are a true copy of the reasons for judgment herein of the Court. Date: 5 August 1988. Kas peor Wow nn. Associate Counsel for the appellant Mr Coombes QC and Mr Lucas Solicitors for the appellant Crossin Power Haslem Mr P. Sheils QC and Mr Romano Counsel for the respondent Solicitors for the respondent Romano & Co. Date of hearing 6 July 1988. Attachment "A" FEDERAL COURT OF AUSTRALIA » ALGIN,......... DISTRICT REGISTRY OES RAL... DIVISION CT No. of Action40. of. lage TITLE oF actron SRM, RAUBER, Y.. STAMMISLIW.. SAMO * Counsel and ( Mv a . Shois. AC. 2, My SOMOADO,. * Solicitors for ( Romane. &. CD ccc cc acacaccccucuees * Please delete, as necessary, in Industrial Division matters where a representative appears for a party pursuant to s.117A of the Conciliation and Arbitration Act 1904. The representative's name and the name of the party he is representing will be inserted in lieu.