GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v TANTI SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, PRIESTLEY JJA, and Hope AJA 22 August 1989, 22 August 1989 [1989] NSWCA 88 Appeal from District Court — Assessment of damages — No issue of principle. ORDERS Appeal allowed and judgment set aside. Verdict and judgment for the plaintiff for $55,254 to date from 4 September 1987. Respondent to pay the costs of the appeal and have a certificate under the Suitors' Fund Act. Mahoney JA On 4 August 1985 the plaintiff suffered a motor vehicle accident. The defendant has accepted liability for the accident. On 4 September 1987 the assessment of damages came before his Honour Judge Lloyd-Jones. His Honour gave judgment for the plaintiff in the total sum of $65,254, made up of $25,000 for future economic loss, $40,000 for general damages and $254 for out-of-pocket expenses. There was no claim for post economic loss or for an interest component. The defendant has appealed to this Court upon the basis that his Honour erred in respect of his assessment both of the future economic loss and of the general damages. In order to assess the submissions that have been made it is necessary to refer briefly to the facts. The plaintiff suffered, as his Honour said - and it is not contested - a severe collision. He suffered a substantial injury to his neck, lower back and right shoulder. The right shoulder was dislocated. After the accident the plaintiff walked around. He did not take much notice of it at the time, as he said, but the following morning, suffering from pain, he went to the local doctor. He said he had physiotherapy in respect of this condition for some two or three months but that that did not really help. His Honour's summary of the accident, which has not been the subject of contest, is set out in his Honour's judgment in the following terms: "\.. there was a severe collision and in it the plaintiff suffered a substantial injury to his neck, his lower back and in the area of the point of the right shoulder, the dislocation of the joint. The neck situation persists and will no doubt settle over the years to come, the lower back problem has virtually disappeared, the right shoulder difficulty, however, persists and will not improve and there is a probability of arthritic development. The shoulder remains deformed. It drops when he sits and there is a clear, large bony type lump on the shoulder just behind the area where the collarbone joins the shoulder proper." His Honour noted that the plaintiff is a farmer. It is not suggested that he has worked in other than farming activities or that his work capacity lies in any other area but that. The shoulder, as I have said, sits lower than the left shoulder and the plaintiff has difficulty with it. In the evidence he described the sequelae of the accident in a way which, it may be fair to comment, seems rather laconic. He said that there is pain in the shoulder which comes and goes. He has difficulty in relation to it. In the lifting of things he has pain which comes in cold weather. He has limitation 2 UNREPORTED JUDGMENTS in the extent to which he can use the shoulder in directing horses. He cannot do as much as he could before. He has difficulty shovelling and moving a wheelbarrow. He said generally that he cannot do as much as he did before. He can only do a bit and "let the other bloke do the rest". He gets tired. He referred to pain in his neck which he said came with the cold or the wind. He could not turn his neck too far. Apart from that, there was no significant complaint. It is proper to note, as counsel has said, that the plaintiff is right-handed and that therefore the difficulty in his right shoulder relates to his dominant hand. The only oral evidence in the proceedings was the evidence of the plaintiff. Medical evidence was given by way of tender of the medical records. His Honour had before him two reports of Dr Peter Gray, a report by Dr O'Mara, one by Dr David Cropley and a report by Dr McGlynn. The only report upon which in substance reliance has been placed is that of Dr Gray and I shall confine what I say to that report. His Honour in his judgment assessed the plaintiffs condition as the basis upon which he came to the assessment of damages. He said he thought the plaintiff was genuine and that he acceptcd his evidence. He accepted "in general terms the medical reports for the plaintiff'. That, I interpolate, would have been the reports of Dr Gray. He then said: "He will therefore for the remaining forty years or so of his life have a bad shoulder with the arthritic development making it worse, so he has a very severe problem, and to that of course has to be added what might be loosely described as the usual whiplash type injury. It well may be that with this arthritic development that his future economic loss will be quite substantial, and there is a danger of under-compensating him in that regard bearing in mind that he will have thirty years of working life ahead of him. Doing the best I can in the circumstances for future economic loss I allow twenty-five thousand dollars. It well may be that he will well before that thirty years be virtually a cripple." His Honour then assessed general damages by reference to, as he described it, ".. the whole of the evidence and what I have adverted to particularly above, and the fact that he has forty years ahead of him". His Honour on that basis awarded $40,000 general damages. The question to be determined is whether his Honour was accurate in the assessment of the amounts awarded for future economic loss and for general damages. The assessments were made, as I have said, upon the basis of the facts as found by the learned judge. With respect, I am unable to accept that his Honour's findings of fact were completely accurate. His Honour has approached the matter upon the basis, I think, that there will in fact be a development of the osteoarthritic condition to which he referred. In the course of his judgment his Honour used the phrase "it may well be" in relation to it but in other places indicated his view to be that that condition would get worse. Mr Coleman, for the appellant/defendant, submitted that the evidence does not carry the case so far. His submission is that the best that can be concluded on the evidence is that there is a possibility - I would interpolate, no doubt a real possibility - that the arthritic condition will develop as his Honour said but that the evidence does not establish the matter to the extent to which his Honour saw it established. \GROVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v TANTI (Mahoney JAB This I think turns upon the effect to be given to the opinion of Dr Peter Gray expressed in his report of 17 October 1986. That report, as far as is relevant, contains the following expression of opinion: "Tn his motor vehicle accident in late 1985 Mr Tanti sustained an acute flexion and extension injury to his cervical spine resulting in a soft tissue strain. He also sustained a direct blow to the outer aspect of his right shoulder resulting in a dislocation of his right acromioclavicular joint. With regard to his cervical spinal injury, there is no indication for any further investigations or surgical management of this problem. I would advise isometric neck exercises to improve the power and tone in his paraspinal supporting muscles. With improvement in muscle tone, I would anticipate that his neck discomfort would settle for day to day activities but he may still be troubled by intermittent discomfort following activities that expressively load his spine. I would not anticipate any progressive clinical or radiological deterioration in cervical spinal function as a direct consequence of this injury. With regard to his right shoulder injury, at this stage there is no indication for surgical intervention in the management of the dislocation of the AC joint. It is not unusual for people to experience discomfort in the region of the AC joint particularly when performing heavy lifting above shoulder height. I would not anticipate any significant clinical improvement in Mr Tanti's shoulder girdle function with the further passage of time. Rather in the years ahead, he may well experience increasing pain and discomfort in relation to his right AC joint as a result of the development of post-traumatic osteoarthritic changes in the right AC joint. Should the pain and disability from such changes be significant, then surgical excision of the outer end of the clavicle could be performed. Such a surgical procedure would not be associated with any significant deterioration in shoulder girdle function." I do not think that the opinion expressed by the doctor in that report or otherwise justifies the conclusion to which his Honour came. At best I think there is the possibility - and, as I have said, I accept a real possibility - that there will be a development of the arthritic condition. The doctor, in particular, said this: "I would not anticipate any significant clinical improvement in Mr Tanti's shoulder girdle function with the future passage of time. Rather in the years ahead he may well experience increasing pain and discomfort in relation to his right AC joint as a result of the development of post-traumatic osteoarthritic changes in the right AC joint", and the doctor indicated that if the pain and disability were of sufficient dimensions a surgical procedure would be available for the assistance of it. His Honour having therefore approached the assessment of damages upon what, in my opinion, is an error of fact, it is necessary for this Court to set aside the judgment. It has not been suggested that the court is not in a position to make a reassessment of the damages itself. In my opinion, it is in that position. I therefore approach the reassessment of the two items of damage to which I have referred. T do not think that I would differ from his Honour in the assessment of $25,000 for future economic loss. I am content myself to assess the damages at that amount. As I have said, this amount represents damages for loss of economic capacity. T accept Mr Coleman's submission that it is not possible to fix any definite sum by way of future wage loss. The plaintiff was working in a family situation on a farm. There was the possibility, but no more, that the farm might be sold. While 4 UNREPORTED JUDGMENTS he continued in the family situation on the farm he was doing less than otherwise he would have done; it may be, put in a colloquial sense, less than what others would have seen as his fair share, but however that be he would continue on in that situation and it is not suggested he would suffer any economic loss during that period. But should the farm be sold, or otherwise if he be required to seek work elsewhere, then he would, in my opinion, be at a significant disadvantage. It was accepted that his work capacity lay in the farming or labouring area. He has difficulty lifting, particularly lifting above his shoulder, and the limitations upon his physical strength referred to in the evidence, to which I have referred only shortly, would be such as to place him at a real disadvantage in the labour market. I would think $25,000 to be a reasonable assessment of economic loss for loss of that capacity. In relation to the general damages I have more difficulty. The plaintiff gave evidence as to the effect of these conditions upon him. He said that there is pain in the shoulder but that it is not constant: it comes and goes. He said that if he tries to lift something he gets pains and the cold weather and the wind have an effect upon it. I have indicated also that the condition in relation to the neck is somewhat similar. He said that he could not drive too long with the window open because of the wind. It gives him a pain in the neck and the shoulder and he said that he has difficulty in sleeping because of the pain that he suffers. I do not underestimate the discomfort from which he suffers. However, he has continued with his work and seem to be able to do so. Attempting a proper assessment of his difficulties and upon the basis that this Court in reassessment is required to form its own view of the general damages, I would arrive at a figure of $30,000. That being so, I would conclude that the appropriate overall verdict and judgment for the plaintiff in this regard should be $55,254. I would propose therefore that the judgment of the learned judge be set aside, that there be substituted for it judgment for $55,254. That judgment should take effect from the date on which his Honour gave judgment, namely, 4 September 1987. Priestley JA It seems to me that the trial judge's conclusions concerning the future of the plaintiffs shoulder went further than was justified by the medical evidence of Dr Gray, upon which the judge relied, and did so to an extent which makes me think his assessment of damages must be regarded as vitiated. I agree with Mahoney JA that this Court must make its own assessment of damages. I agree also with what he has said about the judge's estimate of a figure for future economic loss and would not disturb the figure of $25,000 for the purposes of this Court's own assessment. Taking into account what I understand to be the actual effect of Dr Gray's carefully expressed prognosis of the future for the plaintiffs shoulder, I also agree with the figure arrived at by Mahoney JA in regard to general damages. I agree with the orders proposed by Mahoney JA. Hope AJA I agree. The result therefore is that the appeal is upheld. The judgment is set aside. Verdict and judgment for the plaintiff for $55,254, to date from 4 September 1987. The respondent must pay the costs of the appeal. The court grants a certificate under the Suitors Fund Act. URKDVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v TANTI (Hope AJA) 5 Counsel for the Appellant: P Coleman Solicitors for the Appellant: JM Crestani Counsel for the Respondent: A Lidden Solicitors for the Respondent: Champion and Partners