AUSTRALIAN BROADCASTING CORPORATION v VERDE IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, MCHUGH and CLARKE JJA 8 February 1988 [1988] NSWCA 10 Appeal from District Court — Assessment of damages in industrial accident — Back injury to worker — Judgment of $90,000 — Amount of general damages $34,000 not excessive — Amount of economic loss not wrong — No question of principle. ORDER — Appeal dismissed with costs. Mahoney JA On 2 May 1979 the plaintiff suffered injuries at work for which, asit is now accepted, the defendant is responsible. On 25 November 1983 the plaintiff commenced proceedings against the defendant and on 29 October 1986 the plaintiff recovered judgment against the defendant for $90,000. The defendant has appealed to this Court against that judgment. in order to deal with the grounds on which the appeal has been brought it is necessary to refer in some little detail to the facts. These are set forth in his Honour's judgment in a fashion which, if i may say so, would not be improved were I to restate them. I shall therefore adopt the statement of a number of aspects of the case as they appear in his Honour's judgment. "The accident sued upon occurred on 2 May 1979. While carrying some light equipment she fell heavily from a path into a shallow hole where evidently some concrete was to be laid. in the fall she abraded her hands and knees and suffered some pain in her stomach and her wrist. However, these injuries healed before long. The main injury she suffered was to her back. She was helped up after her fall and taken to the office. Later that day, she saw the partner of her local doctor, who noted complaints of pain in the right buttock'. " She has, ever since, suffered pain in her back. She remained off work about three weeks. Upon her return to work, she had pain in her back, walking and pushing the trolley. She cried at times with the pain and people helped her. She was again off work with her back for a fortnight, three months after her accident. Apparently at this time she again consulted her local doctor, who referred her to an orthopaedic specialist, Dr Bencsik. Neither party tendered any evidence from that doctor. She had physiotherapy in the form of stretching exercise back exercise in 1979 and Dr Bencsik prescribed and massage. About a year after the accident, in May 1980, she again lost time off work on account of her back, and apart from short periods she has not worked since. it seems that in about June 1980, her spine was manipulated under general anaesthetic, which did not settle the pain. After more physiotherapy, she had an epidurogram in September 1980. This was a very painful procedure. it suggested a possible disc lesion in the low back. Dr Bencsik proposed an operation, but as he could not guarantee her relief from pain, she declined it. Dr Bencsik prescribed a corset which ever since she usually wears. Dr Bencsik also told her she should try for lift work. Apparently she approached the defendant about that time but was told it could not provide such a job. 2 UNREPORTED JUDGMENTS In October 1981 she approached another general practitioner, Dr Samian for a referral to another specialist. it appears this Was Dr Weisz, to whom a report of a CT scan on 30 November 1981 was made. This diagnostic aid also suggested disc abnormality at the same level (L4-5). Neither party tendered evidence from this second treating specialist. in January 1982 the plaintiff's employment with the defendant was terminated." The plaintiff has, I think, not worked since. it does not appear that she has sought, or seriously sought, alternative employment. The plaintiff said that she would, uninjured, have continued to work until she was sixty-five or thereabouts; it may be that she would have continued thereafter. The defendant contends that from the time of her ceasing her employment with it her incapacity for work ceased. The plaintiff contends that then and since she has been incapable of doing relevant work, that is work which otherwise she could and would have done. His Honour, in considering the determination of this question of capacity, properly directed his attention to the assessment of the plaintiff. This was a matter on which, in a relevant sense, the medical witnesses differed. His Honour said: "in view of the medical reports, much depends or may depend upon an assessment of the plaintiff herself. She impressed me very favourably. I thought she was a very credible, well-motivated lady, of very engaging disposition, despite the difficulties created in the formal court room situation by her apparently irrepressible volubility. I accept that she was a hard-working woman, very active for her age. I feel quite sure that she did not wish to leave her work at the defendant's premises at Gore Hill, and that she would have been a very well-liked person there. I think, however, that she was unconsciously become self-absorbed and self-protective to a degree that does not seem warranted by the medical evidence as to her physical condition with which I shall shortly deal. I think she undervalues, though quite genuinely, her residual physical capacities. it seems to me that once the prospect of return to the very congenial work situation she enjoyed at the ABC.'s Gore Hill premises was denied to her, other circumstances conspired to help her persuade herself that there was no paid work at all that she could do. Such circumstances include that, with three of the four adults in the home self -supporting, there is no pressing economic incentive for her to go out to work and that she has a loving family who are quick to relieve her of any testing, and indeed many other household tasks. Apart from her accident I think she would very probably have happily worked on with the defendant at least until her husband retired, which has not yet happened, and indeed, that probably she would have worked on for at least some time beyond that. Apparently there was no compulsory retiring age for the tea-ladies, another of them having worked until aged seventy." His Honour subsequently said: "it would be clear from what I have already said that I reject any notion of conscious malingering, as an explanation for the plaintiff's complaints. The medical assessment of the plaintiff differed. The learned judge, after referring to the competing views, said: "in general I find more persuasive the views, and I may say the tone, of the reports of the doctors relied on by the plaintiff. Nevertheless, I do not think that their reports should be read literally so as to fully support the plaintiff's claim. I think I have to apply my experience to decide what the doctors are likely to have had in mind by terms such as 'heavy work', 'bending', and so on. I think that if URJ AUSTRALIAN BROADCASTING CORPORATION v VERDE (Mahoney JA) 3 they had all the benefit of the detailed description which Dr Barry had in giving his oral evidence they may well have concluded by now and for some time the plaintiff could do her pre-accident work, albeit with some difficulty and real, though not disabling pain. However, if Dr Rundle and Dr Bloch be accepted then in the light of my view of the plaintiff what they perceive is, it seems to me, compensably related to the injuries sued upon and is not likely shortly to go away. I should add that my general acceptance of Dr Barry does not include what, arguably, he might have been saying, namely that there had been no gradual improvement from 1982. In the result there are two ways of looking at this. The first is that for some time the plaintiff has been only partially incapacitated for her pre-accident work which was the practical measure of her earning capacity, and remains so. In this case and on the facts here, the defendant, a large public corporation, would face an evidentiary onus of quantifying her residual actual earning capacity which, absent with evidence, I would think to be minute, and also would need to face with reality that a woman of nearly sixty who had been off work with a back disability for over eighteen months (from about mid-1980) would find it very difficult to get work at all. The second way of looking at it and the way I prefer to do so is that by now and for some time she had recovered her pre-accident capacity but had, for all practical purposes, lost it for a lengthy period." On the basis of these findings the learned judge assessed damages as follows: "1. Medical expenses - $1,600.88 2. General, non-economic damages (notionally 30,000.00 $15,000 for the past for the purposes of 4 below) - 3. Loss of earning capacity (net of Commonwealth 34,000.00 Employees' Compensation payback 4. Interest (7% of the sum of $34,000 and $15,000 25,725.00 for 7.5 years conceptually agreed as valid by the parties) $91,325.88 LESS credit to the defendant for medical expenses 1,256.88 paid $90,069.00 Rounded off to $90,000.00 " The defendant's submissions have, in substance, been directed to two things: the award of general damages and the assessment of economic loss. I shall go first to the general damages. in relation to these the learned judge said: "As for general damages I think the way Dr Samian put it sums the position up. A 'bad back' is a grievous affliction for anyone and particularly for someone of the plaintiff's erstwhile vigour. The balance of the medical opinion is that her condition is organically determined, whatever the exact basis of the organic pathology, and that no substantial improvement is to be expected. The average life expectancy of a woman at the plaintiff's age is for nearly another twenty years. She has had a pretty bad time and that will not improve much. On the other hand, there must have been a substantial chance that her degenerative spine would not have for ever remained symptomless. I would allow about $30,000." 4 UNREPORTED JUDGMENTS The principles on which this Court is to deal with an appeal against an award of general damages are well settled and have not been in contest in this case. The submissions that were made, and they were made shortly and nonetheless cogently for this reason, were, I think, two. it was said that if the assessment of the plaintiff's condition in relation to economic loss, to which I shall refer, was wrong, then of course the general damages were wrongly assessed. Secondly, it was said generally that they were excessive although, as it was said, the assessment was within the proper range. I do not think that his Honour was in error in either of these respects. As I shall indicate I think his Honour's assessment of economic loss was correct. And I do not think that, under proper principles, it can be said that the award of damages here in question was wrong. The plaintiff had suffered significant pain. it was said, for example, that she had cried with the pain. it was suggested that she was suffering significant pain even at the date when her incapacity for work ceased, that is on 30 June 1985, and the view has been that she will continue to suffer significant pain, although it has to be taken into account -(as his Honour did) that some of this pain may have been suffered by her anyway as a result of normal degeneration. Putting the matter generally, I do not think that it has been" established that the award of general damages is excessive to the extent that would invite this Court's interference. I come then to consider the submissions made in relation to economic loss. His Honour made an award of $34,000. As to this his Honour said: "This figure equates to the plaintiff's agreed wage loss nett of tax 'and workers' compensation type credits to the defendant, from the date of injury to 30 June 1985, a time shortly before" she saw Dr Barry and at which time she was aged just over sixty one years." The defendant's submission has been substantially that it should be held that she suffered no disability or incapacity and so no economic loss from the accident; or alternatively, that the period of her incapacity ended earlier than the date selected by the judge, namely 30 June 1985. Without limiting what Mr Galitsky has said on behalf of the defendant, the main thrust of his argument has been that his Honour should have accepted the opinion of Dr Bloch rather than the opinion of Dr Barry and the other doctors relied on for the plaintiff. For myself I am not satisfied that his Honour fell into error in this regard. I think that his Honour's acceptance of Dr Barry was warranted and was correct. Dr Bloch was, I think, generally of the view that the plaintiff had suffered no adverse effects from the accident. At least he was of the opinion than as of the date when he saw her in 1985, ie, 29 November 1985, there were no objective signs of orthopaedic impairment. The doctor, in his report of 2 December 1985, in relation to that examination, said this: "The whole pattern is seemingly one of emotional and motivational effects, no doubt compounded by continued symptomatic treatments and the influences and exigencies of the current system. She would be fit for all duties in keeping with her age from an orthopaedic viewpoint." The doctor then added at the bottom of his report this: "T use the term of 'motivation' to indicate that a person is exhibiting in the interests of self-gain subjective levels of disability for which there are no objective signs. By self-gain, I imply the need for solace, vindication, remuneration or as indicated by the exigencies of the current" system." URJ AUSTRALIAN BROADCASTING CORPORATION v VERDE (Mahoney JA) 5 if that opinion were accepted then there would be substantial force in the submissions made by Mr Galitsky for the defendant. Dr Barry, on the other hand, in his report dated 14 August 1985, in indicating what was seen on examination said that there was no deformity in the back but - "... movements appear to be restricted and on forward flexion she reaches only a little below her knees." It is not necessary for present purposes to go further into the detail of Dr Barry's report or the effect upon it of the discussion which took place in evidence. He was the only doctor who gave oral evidence and what he said in evidence was not, I think, the subject of cross-examination. There was no cross-examination of what he there said or, as I understand it, of what he had said in his reports. Putting the matter in general terms I see no reason why his Honour should not have accepted Dr Barry in preference to the views of Dr Bloch. For myself, I would have been content to do likewise. in the circumstances, therefore, I do not see error in his Honour accepting the plaintiff's incapacity for work as having persisted up to 30 June 1985. Some incapacity continued after that date but his Honour does not appear to have found it appropriate to grant further compensation in relation to that. There is no cross-appeal brought in relation to that and it is not necessary for me to consider that aspect further. in the circumstances, therefore, I do not think that his Honour fell into error in either of the matters to which substantially the defendant directed argument. in these circumstances, the appeal has not succeeded. I propose that the appeal be dismissed with costs. McHugh JA I agree with the orders proposed by Mahoney JA for the reasons given. Clarke JA I also agree. Mahoney JA The order of the Court is that the appeal is dismissed with costs.