GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v MURAT SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, MAHONEY, and CLARKE, JJA 13 July 1990 [1990] NSWCA 74 Appeal from District Court — Quantum of damages — Assessment not erroneous on the facts — Appeal dismissed with costs — No issue of principle. Mahoney JA On 20 June 1985 the plaintiff suffered injuries in a motor vehicle accident. The defendant admitted liability for the injuries. On 15 March 1989 his Honour Judge Graham in the District Court.awarded the plaintiff $64,218.84 by way of damages. The damages were made up in the following way: out of pocket expenses $34,218.84; past economic loss $35,000.00; future economic loss $5,000.00; and general damages $20,000.00. These amounts total, as I have said, $64,218.84. The defendant has appealed to this Court against his Honour's assessment. The defendant has suggested that there should be a re assessment upon the basis of allowing the plaintiff her out of pocket expenses in full; accepting that she was off work because of the accident for a short period but making no allowance otherwise for economic loss; and reducing the general damages from $20,000 to an amount in the order of $5,000. The plaintiffs injuries, as far as she complained of them, were stated by his Honour in the following terms: "The plaintiff complains that over the last couple of years she has suffered from neck pain which has got better. She says she still has pain in the neck but it is not as bad as it used to be. She says she has continuing pain in the back although she said it has certainly improved with medication. She says that she tries to carry on her life as best she can doing the shopping, accompanied by her family, and doing whatever she can around the house providing she rests and takes analgesic tablets. She suffers, she says, from headaches from time to time which are relieved, that is lessened in their severity, by taking medication. She regards herself as fit for some light duties and agrees that she has been so fit since about September 1986. The plaintiff also complains that she has pain in the left shoulder and arm but that it has slightly improved and is not as bad as it felt after the accident." The learned judge did not accept that all of the matters complained of by the plaintiff resulted from the accident. He evidently took the view that the plaintiff's credibility had been seriously affected by cross examination which adduced evidence that, in relation to some of the matters in question at the least, the plaintiff had had previous difficulties and had suffered previous accidents. In particular, his Honour said: "Tt is clear also that the plaintiff's complaints of headaches and difficulties with her right shoulder and neck pain cannot be related to this particular accident." However, his Honour did accept that the plaintiff had "a minor muscular ligamentous strain of her back." 2 UNREPORTED JUDGMENTS It is from this that the learned judge's assessment of damages proceeded. The learned judge said that he took into account, in assessing the opinions as to her condition, that on a long term basis her prognosis was good, and his Honour said, "The question that follows is: to what extent those symptoms affected her capacity to earn an income". His Honour then (and I put the matter in the most general of terms) accepted that the plaintiff, having been off work during her pregnancy for some time, would have returned to work as at September 1986. His Honour accepted that because of the accident, when she did return to work, she was fit only for light duties; that she had asked for light duties at a previous employer's establishment; and that she was not given such duties. She, therefore, was not able to resume work and, ultimately, her employment was terminated. His Honour recorded that the plaintiff had sought employment by way of light duties up to the time of the trial and had been unable to obtain that employment. On that basis his Honour assessed the compensation for past economic loss at the amount of $35,000, to which I have referred. His Honour then concluded that the plaintiff's symptoms: "are presently or will, in the very near future, be such as to enable her to perform duties similar to those performed by her prior to the motor vehicle accident." and accordingly awarded her $5,000 for future economic loss. The thrust of the argument presented by Mr King on behalf of the defendant was substantially that his Honour was not justified in finding as he did in relation to the back strain to which I have referred. The argument was put shortly, but no less effectively, in that regard. Again, oversimplifying the matter, Mr King's argument was to the effect that the plaintiff's credit had been substantially damaged. His Honour, in accepting the existence of the back strain and the effect of it, relied upon the conclusions of two doctors; in particular Dr Bannister and Dr Cropley. However it was said that the views of those doctors and their conclusions were based upon the history that was given to them. That history did not include evidence that the plaintiff had previously suffered from a back condition and, therefore, their conclusions were void and that his Honour was not entitled to rely upon the conclusions of the doctors. The argument then suggested, as I understand it, that therefore his Honour, and ultimately this Court, should not accept that there was any evidence sufficient to justify the conclusion that there was back pain related to the present accident which produced the plaintiff's incapacity to which I have referred. The learned judge was, in my opinion, conscious of the matters to which reference has been made in the argument of Mr King. He referred to the evidence which had been adduced in cross examination as to some inconsistencies and incongruities in the plaintiff's evidence. Having referred to these matters, his Honour then said: "Notwithstanding the reservations I have expressed, I accept the opinion of Mr Bannister that the plaintiff, as at February 1989, continues to have the effects of her motor vehicle accident. I think, however, that that opinion needs to be accepted in a qualified sense. The qualification relates to the lack of credit demonstrated on the part of the plaintiff. I am satisfied that she continues to have some low back symptoms but I am not persuaded that they are necessarily severe enough to prevent her from carrying out her previous duties. They may have that level of seriousness but I have substantial doubts about it. On the other hand, it seems to me that Dr Cropley placed no time limit on the prognosis for recovery albeit he thought the prognosis was good. In the circumstances I think it appropriate to record that the plaintiff has sought employment by way of light duties up to the present time and has been unable to \GROVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v MURAT (Mahoney JAB obtain such employment. That result of such enquiries is, by no means, strange or incredible. She is unqualified and inexperienced in any form of employment other than factory work and it is reasonable to suppose that it would have been difficult, if not impossible, for her to find light duties over the past two and a half years since she was due to return to the work force. Notwithstanding the length of time she had been employed by Arnotts, she was not offered light duties and her employment was terminated in September 1986. The reality of the situation is that, with the diminishing and perhaps low level of symptoms experienced by the plaintiff, she was practically incapable of obtaining employment within her physical capacity and her employment skills up to the present time." His Honour, in coming to the conclusion that he did, was entitled to take into account, and did, I think, take into account, a number of matters. The first of them was that records of the plaintiff's admission to hospital on 20 June 1985 were in evidence. The Auburn District Hospital records indicated that at the time the plaintiff complained inter alia of difficulties with back pain. It may be that the nature of the complaints there set forth would, in another person, be viewed with some scepticism. It may be that in the present case they should be viewed with an appropriate degree of scepticism. But the fact was that at the time of this accident, complaints of back pain were made. His Honour then had the conclusions of the two doctors to which I have referred. Dr David Cropley, on 6 August 1986, gave a report in which his conclusion was: "This woman sustained a minor musculo ligamentous strain of her back which obviously was aggravated by her pregnancy state and her ongoing glove and stocking anaesthesia is not indicative of any nerve root compression. I believe she should be exercising more vigorously as she is otherwise fit and I believe if she were to do this on a long term basis her prognosis would be good. She has recovered from all her other minor injuries." Dr Bannister who had been seeing her on an ongoing basis gave a report dated 23 February 1989 in which, inter alia, the doctor referred to physical examination relating to her back condition, and his opinion was that she continued to have the effects of her motor vehicle accident. He said that the recovery is going to be slow, that she should continue with physiotherapy indefinitely, and that there was no evidence of over reactivity or exaggeration during the examination. He expressed the opinion that her symptoms should be attributed to the motor vehicle accident. There was also evidence in a report of her local doctor, Dr Bulbulia, given on 16 May 1988, supportive of the view that the plaintiff did in fact have back problems of the kind of which she complained. The complaint has been made by Mr King, on behalf of the defendant, that these doctors' opinions should be put aside because they were or may well have been affected by the fact that they were, as it was submitted, given an incorrect history. It was suggested that she, the plaintiff, had not properly revealed the prior injuries. The effect of an inaccurate or incomplete history upon the validity of medical opinions must be determined, of course, in the light of the circumstances of the opinion and the nature of the deficiencies in the history given. Particularly in physical matters where pain is involved, the Court may, I think, know that medical practitioners need not simply accept for the purposes of their conclusions all of the history which is given to them. One, at least, of the purposes of physical examination is to determine what objectively is the case and in some cases, at 4 UNREPORTED JUDGMENTS least, to test the accuracy of the history which has been given. Whether it is necessary in a particular case to rely upon such knowledge depends of course on the circumstances of the particular case. I am content, in the present case, to say that neither of the opinions in question suggests that the doctors were basing their final conclusions merely upon the history that was given, or that their physical examination was not such as to provide an independent or objective assessment of the plaintiff's condition in relation to her back which would have the validity unaffected by such defects in the history that was given to them. I would be inclined to think that the learned judge was entitled to call in aid in support of the conclusion on which he acted what the doctor said, namely, that the plaintiff's back condition was induced by the accident in question. There are other facts, I think, that are proper to refer to. As has been pointed out, the plaintiff had been working for the particular employer in question for a considerable time prior to the accident. She had had back difficulties and had made complaints of back difficulties prior to the accident. However, those complaints had not resulted in her being disabled to the extent that she said she was by this accident. Putting the matter again in general terms, those complaints did not result in her indicating to the employer that she could work only on light duties. It was only following this accident and the recovery from the stresses of her pregnancy that the plaintiff took that particular attitude. Her previous work history had been substantially that she had been able to carry on with a not unarduous type task notwithstanding the back condition. In all the circumstances, I would not differ from the learned judge's conclusion. I would see what he has decided as being correct. There is one matter to which reference may be made. The learned judge said: "This case has not been put as a case in which any pre existing disability or pre disposition to disability has been aggravated or enlivened by the motor vehicle accident." His Honour seems to have taken the view that what happened in the motor vehicle accident was to be treated on the basis that it caused, rather than aggravated any pre existing condition. I do not think that that affects his Honour's conclusion. The nature of the particular injury may well have been, in his view, different from that of which the plaintiff was shown previously to have complained, but it is proper that reference be made to it in his judgment. In all the circumstances, his Honour was, in my opinion, correct in concluding that the musculo ligamentous strain of the plaintiff's back was such as to put her in the condition of which she gave evidence, namely, that when she returned to work following her pregnancy, she was in a condition then of only being able to do light work. No argument has been addressed to the court to suggest that if that conclusion be right then his Honour's assessment of damages was not substantially correct. I mean by that, that it is not being suggested that the proper conclusion should not be that the economic loss allowed as past economic loss was not proper. In any event and however that be, in my opinion it would be proper to make that allowance. If the plaintiff was suffering from sufficient back difficulty and pain to disable her in the sense to which I have referred, then I do not think that the award of general damages of $20,000 is such that this Court should interfere. It may be that it was, as it has been described in other cases, on the "high side", for the complaint of which the plaintiff has established as due to the accident, but having \GROVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v MURAT (Clarke JAB regard to the principles governing appellants in this regard, I would not intervene in relation to that amount. The result, therefore, is that in my opinion the appeal should be dismissed with costs. 5 Kirby P I agree. Clarke JA I also agree. Kirby P. The order of the Court is the appeal is dismissed with costs.