PETERSVILLE LIMITED, TRADING AS PRESTO SMALLGOODS v BOUCHAIA SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS, MCHUGH and CLARKE JJA 10 June 1988, 10 June 1988 [1988] NSWCA 113 Appeal — Damages — No question of principle — Appeal dismissed. ORDERS The order of the court is that the appeal is dismissed with costs. Clarke JA This is an appeal by a defendant from a judgment directed to be entered by Allen J on 10 December 1986. The total amount of the judgment was $233,953.80 and that was arrived at after the deduction of payments under the Workers' Compensation Act 1926 which it is not necessary to concern myself with in these reasons. The basic components of the judgment were as follows: Medical, hospital and like expenses $3956.16 Diminution in earning capacity - past 60000.00 Diminution in earning capacity - future 135000.00 General damages 60000.00 TOTAL $258956.16 The deduction of workers' compensation payments and the addition of appropriate interest lead to the figure which I earlier mentioned. The appeal is solely on the issue of the excessiveness of this award of damages and in particular two elements. They were the compensation for diminution in earning capacity and general damages. The respondent was born in October 1952 and had come to Australia to join her parents in 1976. Prior to coming to Australia she had, she said, trained for three years as a general nurse in Lebanon and had progressed to a theatre sister. When she arrived in Australia she commenced employment as a nursing aide claiming that she was actually doing the work of a trained nurse. She continued in that employment until 1981 when she took up employment as a process worker with the appellant. There was some dispute as to the reason why she did that but it is unnecessary to concern myself with that at this time. On 20 August 1981 there was an incident at work which led either to her giving notice or being sacked. On the same day she suffered the injury which led to the claim for damages. It appears that she was operating a machine which covered packets of sausages with a film when the machine restarted unexpectedly and crushed a portion of her right hand. She almost succeeded in jerking her hand away but a glove which she was wearing was drawn into the machine. The consequence was that her middle and index figures were crushed. As a result of this incident significant parts of the top phalanges of the index and middle finger of her right hand were amputated. She was conveyed by ambulance to Bankstown Hospital and came under the care of Dr McJannet who treated her from that time until she in fact ceased medical treatment. 2 UNREPORTED JUDGMENTS On 20 August, that is the day of the accident, she underwent surgery involving the trimming and shortening of the amputation stumps. On 25 August she was discharged although her hand was, not unexpectedly, swollen and her fingers, or the stumps, were very sore. On 10 September 1981 she was re-admitted to St Joseph's Hospital for removal of stitches and debridement of the stumps. Again on 15 December 1981 she was admitted to hospital for a further debridement and on this occasion remained there for four days. During the early part of 1982 she continued to consult with Dr McJannet who, on 26 July, admitted her to hospital yet again. On this occasion she was an in-patient for three days and underwent an operation in which Dr McJannet removed digital neuromas from both sides of both the affected fingers. There was then no further surgery for a number of years until, on 10 April 1985, she was admitted to Greenoak Hospital when Dr McJannet carried out a remodelling of the middle finger. I should point out that each of the latter surgical treatments was brought about because of the respondent's complaints of great sensitivity in the stumps of the middle and index fingers. Indeed the complaint of the greatly increased sensitivity continued until the date of trial and constituted, it seems to me - and I think it seemed to the trial Judge - the respondent's major disability. The major issue between the parties at the trial was whether the respondent was genuinely suffering the disabilities of which she complained and, if so, whether those disabilities resulted from an organic base or were, in large part, the result of a functional or psychological overlay. It was the respondent's case that she had suffered a significant injury which had left her only with highly sensitive stumps of two major fingers of her right hand and disabled her to the extent that she had no really effective use of the right hand. The appellant did not accept this view and contended that there was a very small actual disability in the right hand and the respondent was exaggerating. I assume for the purposes of gain. That issue was determined by the learned trial Judge in favour of the respondent. During the appeal senior counsel for the appellant has challenged that conclusion insofar as he contends that it followed from a lack of understanding, or proper consideration, of the views of doctors who had been called by the appellant, and in particular Dr Rae, Dr Greenwell and Professor Jones. I should at the outset say that substantial support for the respondent's case was provided, both by the treating doctor, Dr McJannet, and Dr Isaacs, a psychiatrist who examined the respondent on two occasions. The learned trial Judge, in dealing with the issue which I have described said: "Certainly by now there is an emotional element, a quite significant emotional element, in her overall appreciation of her state to invalidate the opinion which Dr Greenwell first formed more than three and a half years ago when he wrote: 'I think the stumps are genuinely very hypersensitive and suggest to me the presence of neuroma response of severe nature. I believe this patient is genuine and has very definite inability to use this hand. Whilst it is to be said she has this marked degree of incapacity at this time there is as demonstrated by her approach during the whole of the interview and examination, a very marked emotional factor.' What since has occurred, I find, is not any organic change which in any way invalidates that opinion." UWAETERSVILLE LIMITED, TRADING AS PRESTO SMALLGOODS v BOUCHAIA (Clarké JA) In support of the submission that insufficient weight was given to the view of, for instance, Dr Rae, senior counsel pointed to the passage in the judgment in which the learned trial Judge dealt with Dr Rae's observations concerning the history which he had obtained that the respondent had played the organ after the injuries. In the course of his reasons for judgment the trial Judge pointed out that Dr McJannet had said that the respondent had not told him that she played the organ and that the respondent herself had said that she had not told Dr Rae that she in fact had been playing the organ. When her evidence is examined one finds in it an acceptance of the proposition that Dr McJannet suggested that she should try and see whether she could play the organ and that she did just that, ie. she tried to play the organ. She said that she found it impossible to do that and did not do it thereafter. When it is recognised that there is no suggestion in the history obtained by the other doctors who were called - and there were a number of them - that the respondent had played the organ since her injury, it becomes easier to see why the learned trial Judge regarded the history taken by Dr Rae as mistaken. In any event he appears to have accepted the respondent's evidence on the matter, and I do not see that there is any basis for criticism of his judgment in relation to his dealing with the history which Dr Rae said he obtained. Senior counsel then turned to another suggested anomaly, ie. that the respondent had said that she had greatly increased sensitivity yet complained of numbness in the same fingers. Dr Rae said that he regarded this as an inconsistency requiring some explanation, but none was offered by the respondent. It is true to say that there was some reference in Dr McJannet's reports to a type of numbness on occasions in portions of the respondent's hands, but when he was cross-examined he did not seem to accept that there was, in a real sense, any numbness at any time. He described her condition as hyperasthesia. What, it seems to me, is important is that the appellant's counsel did not at any time suggest to Dr McJannet, or any other doctor called, in cross-examination that the existence of numbness in the two amputated fingers was totally inconsistent with the complaints being made by the respondent, nor did he seek to explore in cross-examination the suggested inconsistency which had been adverted to by Dr Rae. I should add that Dr Rae was not called to give evidence and his report only was considered. In these circumstances I do not see that it has been shown that the trial Judge erred in accepting the treating doctor's views in their entirety and discarding the notion that the suggested inconsistency should have led to a rejection of the genuineness of the majority of the respondent's complaints. Similar criticisms were made in relation to the evidence of Dr Greenwell. For instance, it was said that his second report indicated a very good basis for his becoming more skeptical of the respondent's complaints, whereas the trial Judge said, "There is no obvious reason to be found in Dr Greenwell's reports for his becoming more guarded." That particular submission does not, it seems to me, take the challenge to his Honour's approach any further. I do not think it necessary to say any more about it than that. However, our attention was then directed to the evidence of Professor Jones, in which he said that the respondent would not allow him to touch her fingers because of their great sensitivity. Yet, when he distracted her attention, he said he was able to palpate them quite easily. He suggested the thrust of this evidence 4 UNREPORTED JUDGMENTS was that it indicated that the respondent's complaints were not organically based but were either psychological or consciously studied. The learned trial Judge, clearly enough, paid regard to what Professor Jones had said but concluded that he preferred to accept the evidence of the treating doctor who had seen the respondent over a period of about five years, in preference to the Professor who had only seen her once nearly five years after the accident. In addition I think I should say that I would not regard Professor Jones' evidence as indicating any more than that some part of the respondent's problems were psychological, and this conclusion would not have the effect of invalidating his Honour's approach to the assessment of the damages. I would conclude on this aspect by saying that none of the submissions made persuaded me that his Honour's general approach had been shown to be in any way in error; and in addition, there was no indication of a mistaken view or an according of too little weight to particular witnesses in the respects raised by counsel for the appellant. In my opinion the substantive challenge to the amounts awarded has to be approached upon the basis of the factual determinations of the learned trial Judge which I am not persuaded were in error in anyway. He chose the particular figure as an exercise in judgment rather than the more traditional method involving the application of the tables. He adopted this approach because there were, he said, a great number of imponderables which would make any attempt to apply the tables to a weekly loss wholly artificial. He described the approach as being that adopted by Mahoney JA in Settree v Roberts (Court of Appeal, 5 June 1981). Having paid regard then to the respondent's past and her likely future and the injuries and disabilities as he found them, he concluded that the figure that he mentioned was appropriate. If he had stopped there it may be that there could be some basis for saying that he had not fully appreciated the generous nature of the amount he had awarded. But his Honour did not do that. He then proceeded to check his figure against two separate calculated hypotheses. I need not repeat the two alternative bases upon which he approached the problem, but I should say that in my opinion they were both reasonable and relevant to the task which confronted him. When he applied those alternative approaches he reached a figure broadly equal to the sum of $135,000 which he awarded, after discounting for the contingencies of life. Senior counsel for the appellant said that these allowances appeared to be reasonably sensible but if his Honour had taken one step further and carried out a much more basic exercise he would have realised that the amount he was awarding was excessive. The suggested correct approach was test the figure against the 3% tables for the outstanding period of the respondent's working life, ie. between the ages of 26 years and 60. If that approach had been followed the judge would have realised that $135,000 would return $142.60 for each and every week until the respondent arrived at the age of 60. Furthermore, that figure disregards contingencies. If contingencies were taken into account then the figure would be much greater. Again he said that if one simply approached the assessment on the basis that she was totally incapacitated for a period of ten years, which was, in his submission, a generous approach, one would see that the weekly loss that had been calculated was just under $300 per week; again that is without contingencies. If contingencies were taken into account the weekly loss would be $351 per week. UWAETERSVILLE LIMITED, TRADING AS PRESTO SMALLGOODS v BOUCHAIA (McHugS JA) The examples given by counsel for the appellant highlight the fact that the award is quite a high one. But his Honour was required to carry out a very difficult exercise involving a large number of unknowns. There was much room for different views. The imponderables for the future included the question of the abatement of the sensitivity of her stumps, her ability to regain greater use of her hand, her ability to find a job that she could manage and the amount she could earn in any such job. These are but a few of the imponderables which made the task of looking into the future a very difficult one indeed. In these circumstances it is recognised I think that the range accorded to a trial Judge must necessarily be quite wide. Having regard to that factor and the checking exercise carried out by his Honour I have concluded that although the sum awarded is large, it is not so high as to justify the intervention of this Court. I turn finally to the award of $60,000 for general damages. The respondent, as Ihave said is presently in a situation in which she has a deformed hand. Two of her main figures of her right hand have suffered significant amputation and the stumps are now, as his Honour accepted, very sensitive. There was no indication in the evidence accepted by the learned trial Judge that that sensitivity would abate to any significant degree in the foreseeable future. Whether the problem arose wholly from an organic base or was partly the result of psychological overlay the evidence, as accepted by the trial Judge, did not suggest that there was likely to be a dramatic recovery in the foreseeable future. Having regard to the fact that we are not dealing with a simple case of amputation, but a complicated one in which there was the over lying problem of the great sensitivity of the stumps and the associated problems in the other parts of her hand flowing from disuse, it seems to me that a sum larger than one would ordinarily expect to find flowing from an amputation of this nature should be awarded. I should also add that there was some objective evidence of disuse in that there was a finding of wasting of the muscles in the respondent's forearms. No one can seek to achieve a result which is other than very broad in a case of this nature involving a relatively young woman with a nasty injury which had caused her severe problems for about five years and was likely to cause her significant problems in the future. Having regard to those matters and again recognising that the sum awarded is quite generous, I do not believe that I can say it is outside the permissible range. Accordingly, I would reject the challenge to this ground of appeal also. In the ultimate, therefore, the appellant has been unsuccessful in obtaining a reversal of any of the learned trial Judge's findings and in my opinion the appeal should be dismissed with costs. Samuels AP I agree. McHugh JA I agree. SAMUELS AP: The order of the court is that the appeal is dismissed with costs. Counsel for the Appellant: P KENNY QC & R A VINCENT Counsel for the Respondent: J C HARTIGAN Solicitors for the Appellant: HUNT & HUNT Solicitors for the Respondent: NORMAN GIBSON & CO