ADEL BALLOUT v VICKERS RUWOLT PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY ACJ, MAHONEY and MEAGHER JJA 7 March 1990, 23 March 1990 [1990] NSWCA 18 DAMAGES — injury to Lebanese labourer — 20% permanent loss of efficient function of left hand — fit for wide range of labouring jobs — preponderance of medical opinion says unfit for pre-injury heavy labouring work — lack of skills and English language — trial judge rejects plaintiff's evidence as to search for suitable work — judgment entered allows no continuing compensation for continuing loss of earnings or loss of earning capacity — appeal — held: (1) Mahoney JA and Meagher JA: Kirby P dissenting): The damages although low were not so low as to show error and authorize intervention of the Court of Appeal. Wilson v Peisley (1976) 50 ALJR 207 and Davis v Powell Duffryn Associated Colliers Ltd [1942] AC 601, 616 (HL) referred to. INTEREST — on judgment moneys — discretionary character of — plaintiff fails to claim interest at trial — gross delays between injury (1974) and trial (1982) — further gross delays between trial and appeal (1990) — whether delay disentitled appellant to interest; held: (per Kirby ACJ dissenting, Mahoney JA and Meagher JA expressing no opinion); (1) Delay in the prosecution of a claim has conventionally been considered to be a factor relevant to the award of interest on damages on appeal. Bennett v Jones and Anor [1977] 2 NSWLR 355; Bryce v Tapalis, unreported, Court of Appeal, 10 February 1989; (1989) NSWJB 39 applied; (2) Furthermore, when first sought on appeal, it is relevant to consider any prejudice suffered by the defendant in not having the opportunity to call evidence at the trial. Tehfe v Chiu, Court of Appeal, unreported, 2 February 1984 referred to; (3) Nevertheless, the purpose of interest is to reimburse a plaintiff who, by subsequent judgment is held to have been kept out of his or her money. Shoard v Palmer and General Credits Ltd, Court of Appeal, unreported, 21 December 1989; (1989) NSWJB 231; (4) Different considerations arise where, on appeal, the judgment below is set aside and damages must be recalculated. Tehfe (per Moffitt P) considered. Kirby ACJ Faced with delays such as have occurred in these proceedings, it is necessary to struggle against a natural reluctance to reopen a judgment entered as long ago as 8 September 1982 in respect of an injury suffered by Mr Adel Ballout (the appellant) on 15 October 1974. The disinclination to disturb such a judgment stems from feelings similar to those that cause the kindly to leave an old person, heavy with years, asleep and undisturbed. They also stem from a sense of impatience that litigation vitally affecting a party's economic interests could have been so long neglected, without any apparent explanation of how that came about. But the appeal when first lodged, was brought in time. No application was ever made to have it struck out for want of prosecution. It has just continued to meander its way at a snail's pace to be heard by this Court sixteen years after the event and more than seven years after the judgment complained of. When the appellate task is performed, it is necessary to put distaste, dismay and impatience to one side and to look dispassionately at the complaints of the appellant. Only in one respect (interest) is the delay of legal relevance. In the circumstances of 2 UNREPORTED JUDGMENTS the case as I approach it, that relevance is limited. In other respects, a serious injustice has occurred. Belatedly, this Court should remedy it. Labourer injures left hand The appellant commenced work with the respondent in July 1974. He had been born in the Lebanon in 1945. He went to a public school in that country for about five to six years. At the age of 15 years, he commenced work as a builder's labourer. At the age of 18, he became a soldier for five years. Upon his discharge at the age of 23 he drove a taxi in Tripoli, a town in the north of the Lebanon. He arrived in Australia in 1974 when he was 29. He then joined the employ of the respondent. On 15 October 1974 the appellant was injured in the course of his employment. That employment involved heavy labouring work. He had to stack lids onto cylinders, putting them on a pallet. It was his job to put 24 of these lids on the pallet. An extremely heavy cylinder standing nearby was in some way toppled. It fell from behind the appellant onto his left hand. This incident resulted in a jagged laceration to the appellant's left, middle and ring fingers. The appellant was immediately taken to Royal South Sydney Hospital. An X-ray of his left hand revealed a comminuted fracture of the terminal phalanx of the left ring finger. He came under the care of Dr C Selby Brown. Dr Selby Brown excised and sutured the wound. However, there was difficulty in closing the wound. It soon became clear that the pulp at the tip of the left ring finger was not viable. Further surgery was necessary. The appellant was certified as unfit for work. He was paid compensation under the Workers' Compensation Act 1926. Dr Selby Brown continued to review the appellant's condition at regular intervals. He gave him certificates of unfitness for his usual occupation in November and December 1984 and January 1975. On 20 January 1975, the appellant was readmitted to the Royal South Sydney Hospital for a still further operation. Slough on the volar aspect of the right middle finger was removed and a manipulation carried out of the middle and ring fingers of the left hand. Physiotherapy was prescribed. Certificates were given into March 1975. At that time Dr Selby Brown arranged for the appellant to attend at the occupational therapy department of the Rehabilitation Centre at the hospital. The appellant's position was unpromising. He had serious scarring and loss of function of the left ring and middle fingers. He was an unskilled labourer from the Lebanon. His English was limited. At the trial, seven years later, he was still giving evidence through an interpreter. In April 1975 Dr Selby Brown and Dr Rea who had seen him in occupational therapy advised that the appellant should undergo amputation of the left ring finger to improve function. The appellant resisted this idea. The trial judge considered that his rejection of amputation was reasonable in the circumstances. On 8 May 1975, Dr Selby Brown reported to the respondent's insurer: "A factory visit was performed by Mr Ballout and his treating Occupational Therapist at the Rehabilitation Centre on 30 April 1975 in the presence of his factory Supervisor. This factory visit has revealed that Mr Ballout is not fit to perform any of the jobs that are available to him at his work. His progress on his work-conditioning programme in the Industrial Unit of the Occupational Therapy Department at the Rehabilitation Centre at Royal South Sydney Hospital shows that it is highly unlikely that the function of his left middle finger can be upgraded to the level required of him at work... I have certified him as remaining unfit for his usual occupation..." URJ ADEL BALLOUT v VICKERS RUWOLT PTY LTD (Kirby ACJ) 3 On 29 May 1975, the same consulting surgeon reported the appellant's final decision not to undergo amputation of the middle finger: "As such he is considered fit only for selected duties which do not involve the heavy use of this hand and as these are unavailable at his pre-accident employer it will be necessary for him to be placed in such selected duties with an alternative employer and in this regard the Rehabilitation Centre Employment officer for the Commonwealth Employment Service will see Mr Ballout regularly. For the time being I have certified Mr Ballout as remaining unfit for his pre-accident occupation at least until I further review him in three weeks time or until such time as he is placed in the above alternative employment." Reports along the same lines continued in June, July, August, September and October 1975. On 28 October 1975, Dr Selby Brown reported: "He has been advised to continue seeking alternative employment placement. Thave certified him as being unfit for his pre-accident occupation at least until the time of his further review in six weeks." A like report was given in December 1975, March 1976 and June 1976. In March 1976, Dr Selby Brown reported on the difficulties the rehabilitation centre were experiencing in securing light labouring work for persons with disabilities such as those of the appellant. In June 1976, he reported: "Mr Ballout has total ankylosis of the distal interphalangeal joint of the left middle finger and almost total anklyosis of the proximal interphalangeal joint of the left middle finger. He also has slight shortening of the tip of the left ring finger with slight restriction of flexion and extension of both the distal and proximal interphalangeal joints of this digit. I have discharged Mr Ballout from further care under my supervision and I have advised him that he has a permanent residual disability of his left hand which I have assessed as at 20% loss of efficient functional use of the left upper limb." In anticipation of the trial, Dr Selby Brown reviewed the appellant in September 1980. His opinion as to his permanent residual disability was unchanged. So it was also in August 1981. Dr Selby Brown did not give oral evidence at the trial. But all of the above reports were admitted without objection. No reason was suggested why the opinion of the orthopaedic surgeon who had the care and management of the patient over such a long time should be ignored or discounted. Dr Selby Brown had advantages in reviewing the condition of the appellant over such a long time. But his was not the only medical evidence taken at the trial. Medical reports were also tendered from Dr Collins Greaves, Thomas Rowe, Ian Stratton, John Furber and J W Spence. It is sufficient for present purposes to set out their respective opinions on the appellant's disability and work capacity. Dr Greaves on 15 July 1987 expressed this opinion: "He now has a permanent disability which assess as a loss of 95% of the effective function of the left middle finger and a loss of 50% of the effective function of the left ring finger. The hand is otherwise normal. This disability is equivalent to a loss of 20% of the effective function of the left hand. He is fit for many types of employment but is unfit for work which requires normal dexterity with the left hand.... Returning to work in a suitable job would be helpful therapy but apparently rehabilitation services have not been able to find employment for him. If the patient does not wish to have an amputation of the middle finger then no other treatment is indicated." 4 UNREPORTED JUDGMENTS To Dr Greaves' report was annexed an X-ray report by Dr Faulder of July 1977 that "there are well marked osteoarthritic changes in the proximal interphalangeal joint of the [left middle] finger". Dr Thomas Rose in September 1980 in concluding his report expressed this opinion: "T consider thus that the patient has lost 40% of the permanent efficient use of his left hand." "Tt is difficult to see why this patient has remained unemployed these past six years. Certainly he could not do his work as a labourer at Vickers Hatfields where he was employed in handling steel production. There are other lighter jobs suitable for a right-handed man who has a damaged left hand." Dr Ian Stratton in August 1981 expressed an opinion of a 20% loss of function of the left hand as a whole. On work capacity he said: "T believe he is fit for many types of light manual employment as his right dominant hand is still fully functioning. It is conceded that he would have difficulty in heavy labouring tasks where he would be required to use the left hand under stress. It would appear that there has been great difficulty in finding suitable light employment over the past three years." Dr John Furber, who saw the appellant in November 1975 for the solicitors for the respondent said: "Permanent disability is equivalent to 50% loss of the middle finger and 20% loss of the ring finger. He is fit for his usual work." Dr Furber's report is economical in the extreme. It contains 14 lines. It misrecords the date of the accident at work which was never in dispute. It does not record what was his understanding of the "usual work" of the appellant save for the description that he was a "labourer". The opinion that he was fit for that work is clearly out of line with the opinions of the treating and other qualified medical consultants whose evidence was tendered at the trial. Dr Furber reiterated his opinion in a report of 22 July 1976. But another orthopaedic surgeon qualified by the respondent, Dr J W Spence, in April 1980 expressed this opinion: "This man has disability; he has a 75% loss of efficient use of the middle finger and 50% loss of efficient use of the ring finger. This would be equivalent to a 17% loss of the efficient use of the hand. The hand is considered to be equivalent to 80% of the upper limb. "This degree of disability would impair his efficiency for doing heavy work requiring full use of his left hand. It would not render him totally unfit. He would be able to do many forms of labouring work and all forms of lighter work. It does not appear to me that injury is sufficiently severe to justify him being off work for 6 years." Finally, Dr Bernard Bloch, who also reported to the solicitors for the respondent said in March 1982: "T would not advise further treatment, least of all amputation of the long finger. He has a good functioning hand, the disability in the ring finger is minimal. The joints of the long finger are firmly fused and he can grip and hold objects with strength. As a guide he has lost 20% efficient use of the ring finger and some 60% of the long finger. This equates to some 20% loss of efficient use of the hand as a whole. He would be fit for all forms of duties including labouring and lifting. I am amazed that he has been off work all this time." URJ ADEL BALLOUT v VICKERS RUWOLT PTY LTD (Kirby ACJ) 5 Dr Bloch apparently saw the appellant on one occasion only. He records his employment as "labourer". However, he provides no detailed examination of that word or of the work it involved in this case. Certainly he did not have the advantages which Dr Selby Brown enjoyed with a report from a rehabilitation specialist who accompanied the appellant to his work, saw the activities involved, reported on their nature and concluded from the factory visit that the appellant was "not fit to perform any of the jobs that are available to him at his work". Trial judge enters a very small judgment The appellant's trial came on for hearing before Lusher J on 9 July 1982. It appears that a jury was dispensed with. His Honour was invited to conduct the trial on the basis of the oral evidence of the appellant and the medical reports which I have reviewed in some detail. No oral evidence was called by the respondent, although it may be inferred from the cross-examination that the appellant had been the subject of surveillance. He had not worked to the date of the trial. Compensation payments totalled $33,264.75 when compensation was terminated. This included a payment made under sl6 of the Workers' Compensation Act in respect of the loss of function of the hand. Lusher J reserved his decision. He delivered judgment on 8 September 1982. At first, he concluded that he should find for the respondent on the issue of liability. However, after this opinion was reached, he received a letter from the respondent's then counsel in which it was indicated that the respondent withdrew the suggestion that the appellant had not made out a case in negligence. In short, the respondent submitted to a judgment in favour of the appellant on the issue of liability. This confined his Honour's task to the calculation of the appellant's damages. It is not surprising to see the course adopted by the respondent. The best result from its point of view would have been a small judgment in favour of the appellant. That would then terminate any continuing entitlements of the appellant to compensation under s11(1) or s11(2) of the Workers' Compensation Act. Lusher J returned a verdict in the sum of $1,511.12 with costs on the appropriate scale. This sum was arrived at in the following way: 1. Out-of-pockets agreed 1,402.86 2. Loss of wages prior to trial and interference with 21,674.00 earning capacity generally 3. General damages for the injury and its 12,500.00 consequences past and present and future pain and suffering etc $35,576.86 Less payments of workers' compensation $33,262.74 Nett judgment $ 1,511.12 In the course of reaching the above conclusion, Lusher J expressed his dissatisfaction with the evidence of the appellant: "T found the plaintiff an unsatisfactory witness as to his manner and demeanour and was not at all satisfied with his evidence as to his efforts to obtain employment and I did not accept his evidence. Over the last two and a half years his wife has worked and although in May, 1980 payments to him under the Workers' Compensation Act ceased, there has been no attempt on his part to have them restored. His evidence as to his activities was also unconvincing and I do 6 UNREPORTED JUDGMENTS not accept him on these matters. His wife's demeanour and evidence was also unsatisfactory and I reject it as being of any assistance to me." These findings were not challenged in the appeal by the appellant. But it was pointed out that no similar findings were - or could have been - made in respect of the opinions expressed by the medical witnesses in their written reports as to the appellant's objective permanent residual disability. Nor did the opinion of the appellant's evidence affect the preponderance of medical opinion (inherent also in the description of his work and the extent of his disability) that the appellant had a continuing permanent disability sounding in a loss of earning capacity. It was upon this basis that the appellant attacked Lusher J's judgment. There were incontrovertible and uncontroverted facts about the happening of the injury, the medical complications that immediately followed it, the painful operations and treatment over prolonged periods and the residual permanent loss of function that resulted. For these, the appellant was entitled to receive a proper award of damages. On work capacity, Lusher J said: "The problem of assessing damages is increased because of the extraordinary lapse of time since the accident, the number of medical reports and the fact that none of the doctors were called. The problem for a judge in these circumstances is obvious, particularly having regard to the conclusions I have reached concerning the plaintiff as a witness. Doing the best I can on the probabilities, I find that as at the end of May 1975 he was at least fit for light work not involving the heavy use of his hand and that from November 1975 when he first saw Dr Furber he was in all probability fit for his usual work. I also accept Dr Colin Greaves who in July 1977 said that he was fit for many types of employment but unfit for work which required normal dexterity of his left hand as not being inconsistent with this view, it is also consistent with Dr Bloch's view as I read it. However taking a favourable view for the plaintiff on the totality of this material, I propose to find and take July 1977 as being the time when he was fit to carry out his normal work." (at page 12) A number of criticisms may be made of this passage: 1. The opinion of Dr Furber that the appellant was fit for his "usual work" includes no analysis whatever by Dr Furber of what that "usual" work was. Given the advantages that Dr Selby Brown enjoyed, with the report of a factory inspection, it might at least have been expected that Dr Selby Brown's opinion would have been referred to by his Honour in this context and some indication given as to why that of Dr Furber was preferred; 2. Dr Greaves' opinion is not, as his Honour asserts, consistent with that of Dr Bloch. Dr Bloch expressed the view in March 1982 that the appellant was fit "for all forms of duties including labouring and lifting". This is just not what Dr Greaves says. He expressed the opinion in July 1977 that "he is fit for many types of employment but he is unfit for work which requires normal dexterity with the left hand". He also records the difficulty which the rehabilitation services had experienced in finding employment for him; No reference is made in his Honour's analysis of loss of economic capacity to the numerous other medical opinions which I have quoted, including that of Dr J W Spence prepared for the respondent. This, it will be recalled, was that the appellant's efficiency for doing heavy work was impaired. Though he could do many forms of labouring work and all forms of lighter work, he had a continuing residual loss of employment capacity. That was also the view of the treating doctor, Dr Selby Brown and Dr Ian Stratton; URJ ADEL BALLOUT v VICKERS RUWOLT PTY LTD (Kirby ACJ) 7 Apart from that, it is clear that the physical disabilities - including the osteoarthritis found on X-ray - must be weighed in the context of a man with the background of the appellant. Leave aside entirely his lack of enthusiasm for work and the undoubted fact that he could do many jobs. What has still to be measured is the effect of this injury upon a migrant labourer from the Lebanon with no training for skilled work and with imperfect command of the English language. In my respectful opinion, the conclusion reached by Lusher J on the medical evidence is unsatisfactory. Although acknowledge the difficulties to which his Honour referred, because, shockingly, no oral medical evidence at all had been called on the appellant's behalf, the overwhelming preponderance of medical opinion was to the effect that there was a permanent and continuing loss of economic capacity. It is for the loss of capacity that damages must be awarded. Calculation of weekly amounts and extensions of such sums during the projected life of the worker are but means to the end of calculating, in money terms, the amount to compensate for the loss of capacity. It was conceded, properly, by the respondent that a number of the figures upon which Lusher J calculated the loss of wages up to the time that he found the appellant fit to carry out his normal work were in error. The difference in the aggregate sum of the loss to the time specified is relatively small. But the error authorises the intervention of this Court. Yet even if such mathematical error had not been shown, the acceptance of the written opinions of Drs Furber and Bloch in preference to the preponderance of other medical opinions, without explanation and notwithstanding the advantages which the treating doctors enjoyed, also in my view shows error. The mistaken statement that Dr Greaves shared the same opinion as Dr Bloch is an error that undermines the reasoning upon which the vital conclusion is reached by Lusher J that the appellant was fit for normal work in July 1977, without disability thereafter. His Honour allowed one year's wages after July 1977, apparently as a "cushion". But after that time, he allowed absolutely nothing for the permanent loss of economic capacity. He allowed nothing for the risk of disabling osteoarthritis which the X-ray report revealed. He provided no damages at all for the impact of the undoubted permanent disability on the appellant's work capacity. In my view this conclusion was erroneous. It requires the setting aside of his Honour's judgment. Once the judgment is set aside it is for this Court to recalculate the damages or to send the matter back for retrial. General damages No explanation is given by Lusher J as to how the sum of $12,500 allowed by him for general damages was made up. The disabilities of the appellant were permanent. It must be assumed that nothing has been allowed for general damages for loss of earning capacity. I reach that conclusion because loss of economic capacity is not mentioned under the head of general damages, the amount allowed is small and his Honour is at pains to decide (in the face of the preponderance of evidence as I have shown) that the appellant was fit for work without limitation in July 1977. Under the head of general damages it was incumbent upon the trial judge to provide damages for the traumatic nature of the circumstances surrounding the injury; the requirement for the appellant to be hospitalised and there to undergo two surgical procedures under anaesthetic; to suffer permanent disabilities which were not really in dispute and to run the risk of osteoarthritis mentioned in the X-ray report. The substantial course of rehabilitation described in the reports of Dr Selby Brown must also be taken into account, as must the manipulations and 8 UNREPORTED JUDGMENTS physiotherapy described in the medical reports. The respondent, properly, concedes that the amount allowed was low, even in 1982 when his Honour performed his assessment. The respondent argues that it was within the range of the quasi-discretionary function reserved to his Honour by law. I cannot agree. I believe that it is so low as to show error and to require, on that ground too, that the judgment under challenge be set aside. No parade of all too familiar legal opinions (necessarily expressed in language of generality) should blind the Court to the clear injustice and error involved in the judgment under appeal. The issue is not the legal principles applicable. They are trite and well known. The issue is the response by an appellate court to what occurred in this trial. Claim for interest At the trial, the appellant made no claim for interest. Such a claim was first made at the hearing of the appeal. The respondent protests and asserts that the very great delay on the part of the appellant in claiming interest has traditionally been a reason for reducing awards of interest or refusing interest altogether. See Bennett v Jones [1977] 2 NSWLR 355; Bryce v Tapalis, Court of Appeal, unreported, 10 February 1989; (1989) NSWJB 39, see per McHugh JA 17. See also Australian Consolidated Press v Driscoll [1988] Aust Torts Rep 80-175. As well, the respondent referred to the unreported decision of the Court in Tehfe v Chiu and Ors, 2 February 1984 where interest was denied. It was pointed out in that case by Moffitt P (at 10): "[A]n award [of interest] is not automatic. Speaking generally, there are some discretions involved. If a claim is made it may be the subject of evidence from either side. The defendant at the trial is entitled to be heard on the question and is entitled to call evidence and, if he thinks fit, to address the court in relation to that evidence. Leaving aside the question of a claim being pleaded, the defendant cannot exercise his right unless at least an oral claim is made at the hearing." The respondent says that no such oral claim is made at the hearing in this case. The respondent was therefore deprived of the opportunity to call evidence or to make submissions on the subject of interest. It was suggested that this was another reason why interest should be refused at this late stage. Later in his judgment in Tehfe, Moffitt P pointed to an important distinction relevant to the application of the principle stated in that case to the present: "The case should be distinguished from that where, on other grounds, the Court finds it proper to reassess damages and so has otherwise to interfere with the judgment. That raises a different question as to what the Court might do on reassessment in relation to interest not earlier raised. That however is not the present case." In Tehfe the Court did not disturb the judgment under appeal. In this case I would do so. Accordingly, the question of damages must either go back for retrial (where interest might be claimed) or be determined in this Court as on a rehearing. Upon any such rehearing, in my view, the appellant is entitled to claim interest. The gross delays in the prosecution of the trial and of the appeal (largely unexplained) are relevant to the exercise of that discretion. They can be taken into account by reducing the amount of interest awarded. But it is important to remember the purpose for which Parliament has provided interest. I referred to this purpose in Shoard v Palmer and General Credits Limited, Court of Appeal, unreported, 21 December 1989; (1989) NSWJB 231 (Priestley J and Meagher J concurring) when I said: URJ ADEL BALLOUT v VICKERS RUWOLT PTY LTD (Kirby ACJ) 9 "The award of interest is provided by Parliament for a purpose. That purpose is to compensate a party which is kept out of pocket in respect of damages which have occurred prior to judgment. Bennett v Jones and Anor [1977] 2 NSWLR 355, 367. See also John Fairfax and Sons Ltd v Kelly (1987) 8 NSWLR 131, 142." In the view I take, the appellant has not received the damages to which he was entitled when this matter was before the Supreme Court in 1982. He has therefore not had the money prior to judgment, the benefit of which the respondent (or its insurer) has enjoyed although it was the appellant's entitlement. The respondent did not seek to call any evidence before this Court on the subject of interest, leave for which would readily have been granted. It could not point to any special or particular prejudice suffered as a result of the failure earlier to ask for interest. It simply relied upon the omission, the gross delay and the principles stated in the cases referred to. In my opinion those principles are necessarily modified where a recalculation must be performed. The appellant asked for a retrial limited to damages. However, this litigation has already been too long delayed. Whilst it is true that there would have been many supervening events since the trial in 1982 and that the impression of the appellant was an important consideration in the approach of Lusher J, I believe that these matters can be taken into account by assuming that the position is still much as it was before Lusher J and by accepting the premise as to the appellant's credibility upon which his Honour proceeded. This was that the appellant was an unreliable witness and had not really tried to get suitable work. In my opinion this Court is able to perform the recalculation. It may do so without injustice to either party. To send this matter back for retrial now would work an injustice to the respondent. I believe that we can safety act upon the evidentiary material that was before Lusher J. After all, the physical disability of the appellant was then stable and described in largely common terms in the medical evidence. The appellant himself had, by then, settled down to a life of relative inactivity. There has been no suggestion by the respondent that this has since changed in a way favourable to it. Recalculation I would recalculate the appellant's damages as follows: 1. Out-of-pocket expenses (as agreed at the trial) 1,402.86 2. Loss of wages prior to trial: (a) total incapacity to July 1977 15,282.00 (b) partial incapacity from July 1977 to trial in July 13,000.00 1982 - 5 years at $50 per week 3. General damages (a) loss of earning capacity: allowing a residual work life of 28 years. According 22,000.00 to 3% tables a lump sum of 993.70 would be required to provide $1 per week to the appellant for that period. Allowing a permanent loss of $30 per week and then reducing the product for conventional vicissitudes, I would include 10 UNREPORTED JUDGMENTS (b) for loss of enjoyment of life, inconvenience, 20,000.00 pain and suffering, permanent physical disability equivalent to loss of 25% of the efficient use of the hand 71,684.86 4. Interest - (a) on excess of pretrial loss of wages over Nil compensation recovered (b) on past general damages, say $20,000 at half 10,000.00 the normal rate [10% between October 1974 and December 1980; 15% thereafter to the date of trial] $81,684.84 Judgment should be entered in favour of the appellant in that sum less the figure repayable under the Workers Compensation Act which was agreed at the trial to be $33,262.74. The judgment should take effect from the date upon which the trial was conducted. Interest will thereafter be payable upon that judgment sum in accordance with the Supreme Court Act 1970. Conclusions and orders In my opinion the following orders should be made: 1. Appeal allowed; 2. Set aside the judgment of Lusher J dated 8 September 1982; 3. In lieu thereof enter judgment in favour of the plaintiff in the sum of $48,422.12; 4. The defendant to pay the plaintiff's costs of the trial; and 5. The respondent to pay the appellant's costs of the appeal. Mahoney JA On 15 October 1974 the plaintiff suffered an industrial accident. It resulted in a restriction in the use of the middle and the ring fingers of his left hand. He did not work between 1974 and July 1982. He claimed that this was because of his injury. The trial judge did not believe him. As I understand the terms of his Honour's judgment, he made the following findings: (1) that the plaintiff was unable to work until 31 May 1975; (2) that he was fit for light work between | June 1975 and 30 November 1975 ("he was at least fit for light work not involving heavy use of his hand"); (3) that the plaintiff was "in all probability" fit for usual work thereafter but that he should take July 1977 as "'the time when he was fit to carry out his normal work"; and (4) that he should allow a period of one year to take account of the time it would take the plaintiff to find work and of the periods of unemployment which, because of the incapacity, he was apt to suffer in the future. His Honour then said: "On the figures submitted to me and not disputed, the loss of wages during the period I have found of total unfitness from the date of the accident, 15 October 1974, to the end of May 1975 at $100 nett is $2929. From then until July 1977, the total loss is (5.7 weeks at $107 + 52 weeks at $116) $12,245. During this period I have found he was fit for light work and some discount of this loss is involved although there is no evidence as to the value of light work. Thereafter, Ihave found he was fit for his usual or ordinary work. I would allow some period within which to have found employment again and also a further sum to compensate for further periods, longer than usual, that may result in finding URJ ADEL BALLOUT v VICKERS RUWOLT PTY LTD (Mahoney JA) 11 employment from time to time and in the future because of the injury. In this respect, I allow in all an equivalent of one year's wages computed as at 1977-8 at $6500 ($125 per week)." On this basis the learned judge awarded $21,785 for economic loss. (I have adopted the small adjustment which, it is agreed, is to be made in this regard). His Honour then awarded: "General damages for the injury and its consequences past and present and future pain and suffering etc.": $12,500. It is these two amounts which are in question in this appeal. 1. Award for economic loss $21,785: The learned judge's adjusted calculations are not in question. The plaintiff's contention is that his Honour erred in the findings he made as to his capacity for employment. I do not think that his Honour's findings in this regard can or should be set aside. The learned judge found the plaintiff "an unsatisfactory witness as to his manner and demeanour" and was not satisfied "with his evidence as to his efforts to obtain employment'. His Honour did not accept his evidence.He concluded that his evidence "as to his activities was also unconvincing" and his Honour did not accept him on the matters to which he referred. He also found the plaintiff's wife's demeanour and evidence unsatisfactory and rejected her evidence. The plaintiff has accepted, in my opinion correctly, that this Court should not go behind those findings. It is upon this basis that his Honour's findings as to economic loss must be considered. It is convenient to consider first his Honour's finding that, as at the end of May 1975, the plaintiff was fit for light work. This finding is, in my opinion, clearly justified. The only doctor who had examined the plaintiff up to 31 May 1975 was Dr Selby Brown. He was the doctor supervising his treatment. His opinion at the relevant time is set forth in his reports of 14 March 1975, 7 April 1975, 22 April 1975, 8 May 1975, 29 May 1975 and 23 June 1975. In the report of 14 March 1975 the doctor noted that the plaintiff's scar was "slightly unstable" and opined that he should then "proceed to work capacity assessment". On 7 April 1975 he said that the plaintiff had "not yet achieved the level necessary for him to return to his previous labouring job" and that he was "unfit for his usual occupation". On 22 April 1975 he said that the use of the left hand was "not yet sufficient to allow him to return to full duties at work which are the only ones available to him" and he therefore certified him as "unfit for his usual occupation at least until the time of his further review in 3 weeks' time...". On 8 May 1975 the doctor said that he was "not fit to perform any of the jobs that are available to him at his work". He said that it was "highly unlikely" that the middle finger could "be upgraded to the level required of him at work" and saw him as "remaining unfit for his usual occupation at least until" his next review. On 29 May 1975 the doctor said he was "fit only for selected duties which do not involve the heavy use of this hand", that such duties were "unavailable with his pre-accident employer" and that it would therefore be "necessary for him to be placed in such selected duties with an alternative employer". On this basis he was certified as "unfit for his pre-accident occupation at least until" the next review. And on 23 June 1975 the doctor stated that "he still has not been able to find suitable alternative employment as yet" and certified him as "remaining unfit for his pre-accident occupation at least until" his next review. On the basis of this evidence the learned judge's finding was correct. 12 UNREPORTED JUDGMENTS The suggestion was made that the plaintiff was totally incapacitated until July 1977. But the only doctor who saw him up to June 1975 said he was not: he said that he was able to do "selected duties". And his report of 2 June 1976 indicates that he remained then of that view. Therefore his Honour's conclusion that the plaintiff "was at least fit for light work not involving the heavy use of his hand" should be accepted. I come now to his Honour's conclusion that he should "take July 1977 as being the time when he was fit to carry out his normal work". His Honour, having made that finding, did two things: he allowed the plaintiff "an equivalent of one year's wages computed as at 1977-78" on the basis of total loss of earnings, at the rate of $125 per week agreed between the parties; and (subject to what I shall say) he allowed nothing for loss of income after July 1978. It is this latter matter which mainly has been questioned. There were three doctors who saw the plaintiff in or about 1977-8. In his report of 2 June 1976 Dr Selby Brown said that, having seen the plaintiff on 27 May 1976, he concluded that "despite repeated attempts over the last | year alternative employment placement has not been possible to achieve". The doctor said that he had discharged the plaintiff from further care under his supervision and advised him that he had "a permanent residual disability in his hand" assessed at "20% loss of efficient functional use of the left upper limb". In his report of 16 July 1977, Dr Collins Greaves said that he had seen the plaintiff on 15 July 1977. After a detailed report of his condition he said: "He now has a permanent disability which I assess as a loss of 95 percent of the effective function of the left middle finger and a loss of 50 percent of the effective function of the left ring finger. The hand is otherwise normal. This disability is equivalent to a loss of 20 percent of the effective function of the left hand. He is fit for many types of employment but is unfit for work which requires normal dexterity with the left hand.... Returning to work in a suitable job would be helpful therapy but apparently rehabilitation services have not been able to find employment for him. If the patient does not wish to have an amputation of the middle finger then no other treatment is indicated." In his reports of 10 November 1975 and 22 July 1976 Dr Furber noted that the plaintiff complained that his left middle finger was "sore" and with "no feeling" (10 November 1975) and that his ring and middle fingers were "very sore". His opinion was that he was "fit for his usual work". From this, the judge reached the conclusion that the plaintiff was "fit to carry out his normal work" in July 1977. It has been said that this was wrong and must be put aside: it is said that the plaintiff's loss should have been assessed on the basis that he could do only light or restricted work and would be paid only on a reduced basis to the date of the trial, July 1982. It is to be borne in mind that the plaintiff's capacity in this regard is for this Court to determine, as on a rehearing. This Court will faithfully give effect to the learned judge's conclusion as to the plaintiff's credibility and to the consequences of that on, eg, the weight which must be given to the opinions of doctors. But it is for this Court to form its own conclusion as to what the plaintiff could then do and what he could earn after July 1977. When the reports of Drs Selby Brown, Collins Greaves and Furber are examined, there is no fundamental difference as to their assessment of the plaintiff's physical condition. If there is any dispute, it is as to the inferences URJ ADEL BALLOUT v VICKERS RUWOLT PTY LTD (Mahoney JA) 13 which were to be drawn from that: what was the extent of restriction of the use of his hand which resulted from it; and what restrictions that placed upon the kind of labouring work which he could do. Each of the three doctors referred to the physical limitations upon the plaintiff's left middle and ring fingers. There was, I think, no great difference, although the descriptions were different in terms. Dr Selby Brown drew the inference that the physical restrictions upon the fingers produced a 20 per cent "loss of efficient functional use of the left upper limb". Dr Collins Greaves inferred he had lost 20 per cent of the effective use of his left hand. Dr Furber did not draw an inference in this regard. Whether there is any difference between what, properly understood, Dr Selby Brown and Dr Collins Greaves said in this regard is, I think, doubtful. Dr Furber drew the inference that, with the stated physical disabilities the plaintiff had, he could do "his usual work". By this he meant, I think, that the physical restrictions would not stop him doing a full labouring job and would not restrict him to selected or light duties. Dr Collins Greaves thought that he could do "many types of employment" but not "work which requires normal dexterity with the left hand". He does not say whether, in his opinion, this would restrict the work he could do to work which would earn him less than a full labouring wage. Dr Selby Brown had early concluded that he was not able to do work which involved "the heavy or moderately heavy use of the left hand". He appeared to remain of this opinion. But he did not draw any inference as to whether that would stop him doing all or a substantial part of ordinary labouring work. As I have said, it is for this Court to determine whether, notwithstanding the physical restrictions to his fingers, he could physically do a full labouring job and earn a full labouring wage or could do work less than that which would earn for him a full labouring wage or less. The only opinion that has been expressed precisely on the point is that of Dr Furber. The other two doctors did not say whether, with the restrictions on his fingers, he could yet do or earn a full labouring wage: perhaps they thought it not within their expertise to do so. It is not every restriction of the left hand of a right handed man which will stop him physically doing a full labouring job. I do not know whether the plaintiff's restrictions would do so: it is not a matter of which I would readily take judicial notice where there is a contest of this kind. The work which the plaintiff had done with the defendant was described briefly by the plaintiff and his witness Mr Mamari. It appeared to involve the use of the left hand as well as the right but not to require any particular "dexterity" in the left hand such as would be affected by the stiffness or restrictions on the middle and ring fingers. Mr Mamari described what was involved and in particular indicated that he used both hands, could use one hand, and when the one hand became tired he started to use the other. In the end, the onus is upon the plaintiff to establish his loss. Drawing such inferences as a court may legitimately do in such a case as this, I would not be satisfied that, because of the restrictions upon his fingers, the plaintiff could not do such a range of ordinary labouring work as would have prevented him reasonably seeking employment upon the general labouring market. In deference to the submissions made in this regard, I would add two things. First, this case does not turn upon the meaning given by the doctors or the judge to "usual work" or similar phrases. What is in question is the substance of what the plaintiff could, at July 1977 and thereafter, effectively do. As I have said, 14 UNREPORTED JUDGMENTS this is an inference which it is for this Court to draw. In fairness to the learned judge, I do not think that he erred in his comparison between Dr Collins Greaves and Dr Bloch. His Honour, in 1982, was aware that the defendant's factory had closed in 1978. His concern was not with what, in 1972, the plaintiff had been doing and whether he could do that in 1978. The judge was, I think, concerned with the more substantial issue of the plaintiff's then capacity to do what usually is done by one engaged in labouring work. Second, insofar as they are of assistance, the remaining doctors' evidence supports the conclusion to which I have come. They did not, I think, substantially differ as to the plaintiff's physical condition. Insofar as they drew inferences from that to his capacity for labouring work, the thrust of them was, I think, as I have indicated. Ihave dealt to this point with what physically the plaintiff could do and at what times. But, as the learned judge recognised, the plaintiff, being injured, would be apt to have greater difficulty in obtaining alternative employment than an uninjured person. His Honour compensated him for this, both at the time when initially he would return to the labour market and for the future.It was for this that his Honour allowed, as he put the matter, a year for the plaintiff to obtain employment. The learned judge allowed for this by awarding the equivalent of one year's wages at the full employment rates obtaining in 1977-8. It may be that strictly some part of the allowance should have been calculated upon the basis that the plaintiff would be seeking employment initially at the time when he could do only light duties. But the allowance was to cover also periods of employment difficulty in the future. I therefore see no substantial error in what the judge did. It was not, I think, submitted in argument that the period allowed was inadequate to take account of this factor. But it is said that this does not properly compensate the plaintiff for the loss in economic capacity arising from the physical restrictions on the use of his two fingers. I do not think that the plaintiff has established that there was error in this regard. As the judge indicated, there was little or no evidence on matters on which, if such a case were to be established, evidence might have been expected. There was no evidence, lay or professional, to indicate precisely what positions the plaintiff could or could not fill. There was no evidence to show that the positions he could fill would produce less by way of wages than those which previously he had filled. To form an opinion as to these two matters would involve speculation. It is speculation in which, on some occasions, a trial court may be involved. But where the evidence is that the plaintiff retains capacity to fill a large number of positions and it is not clear whether those positions will produce less than those which he cannot fill, I do not think that this Court should substitute its speculation for that of a trial judge. Provided the plaintiff is compensated for the loss of his capacity, an appellate court should not interfere. 2. Award for general damages $12,500: It is this part of the appellant's case which, I think, is strongest. The plaintiff suffered the injury, had two operative procedures upon his fingers, is left with the relevant disability and, on the medical evidence, suffered some pain for several years. Dr Selby Brown's reports indicate that for some months after the accident, the fingers required dressing. The plaintiff said that, at the trial, he had pain if the hand was moved or cold but his Honour had the hand shown to him, its movements demonstrated and the fingers were seen by him on at least two occasions during the evidence. The plaintiff spoke as to medication but his URJ ADEL BALLOUT v VICKERS RUWOLT PTY LTD (Mahoney JA) 15 Honour could conclude that, by 1982, he was no longer taking it. He was able, for example, to drive a car and some description of his activities was given. The plaintiff's submission was that, even considered in 1982, an award of $12,500 was too small for such injuries. The principles on which an appellate court considers an award of damages of this kind and, in particular, damages involving pain and suffering, are well settled. They have not been in question in this case. In Gamser v Nominal Defendant 136 CLR 145 Aickin J: at 159; adopted as apposite in that case the observations made by Barwick CJ in Wilson v peisley 50 ALJR 207 at 209: "The setting aside of an award of damages in a trial which has not been irregular or unfair, and where there is neither challenge to the findings of fact made by the trial judge nor any demonstrated misconception of the evidence should, in my opinion, be a most unusual event, to occur only in circumstances where the disproportion between injury and award of damages is so great as to make the award quite unreasonable, indeed outrageous, in the circumstances, whether by being too great or too small: and therefore of itself a demonstration of error present though otherwise undisclosed. The less ponderable the elements of the damages under consideration, the less likely will there be a case for setting aside an award by a judge who has not overlooked any significant fact at the end of a trial not blemished by error or irregularity." The reasons of Aickin J were accepted by Barwick CJ and Stephen J. Gibbs J referred to what he had previously said in Precision Plastics Pty Ltd v Demir 132 CLR 362 at 364. His Honour then cited the well known passage from Lord Wright's speech in Davies v Powell Duffryn Associated Collieries Ltd (1942) AC 601 at 616-7. His Honour then said at 149: "To say that an award of damages made by a judge must be outrageous, or out of all-reason, before an appellate court is entitled to intervene is, I think, with all respect, to state too high a test. However in the present case, in the circumstances stated by my brother Aickin, it should not have been held by the Court of Appeal that the award made by the learned judge was a wholly erroneous estimate of the damage suffered, and that there was no sufficient ground for the Court of Appeal to have interfered with that award." In a case where pain and suffering and matters of amenity constitute that the matters, or a substantial part of the matters, for which the general damages are given, an appellate court has less scope to intervene. In Miller v Jennings 92 CLR 190 at 195, Dixon CJ and Kitto J cited the speech of Lord Wright in the Davies case: at 616-7 where his Lordship said: "The damages in some cases may be objective and depend on definite facts and established rules of law, as, for instance, in general damages for breach of contract for the sale of goods. In these cases the finding as to amount of damages differs little from any other finding of fact, and can equally be reviewed if there is error in law or in fact. At the other end of the scale would come damages for pain and suffering or wrongs such as slander. These latter cases are almost entirely matter of impression and of common sense, and are only subject to review in very special cases." His Honour assessed general damages in 1982. He had the opportunity to observe, in the demonstrations during evidence, what the plaintiff's injuries in fact involved by way of restriction and he was entitled to make an assessment of the degree of pain and discomfort which, at that time and thereafter, it was proper to infer from what the plaintiff had said in evidence. He was, I think, entitled to 16 UNREPORTED JUDGMENTS conclude that physical pain and discomfort at that time and for the future would not be matters requiring substantial compensation. I have referred to the fact that his Honour's assessment was made in 1982. It is, I think, necessary that, before this Court reassess such damages, it find that the learned judge erred in what he did and in considering that, it is proper to have in mind that, in money terms, general damages assessed at that date were less than at the present date. In all the circumstances, I am not satisfied that his Honour's assessment of general damages was beyond the range of a sound discretionary judgment and such that this Court should interfere. The suggestion emerged in argument that the result in this case is an injustice to the plaintiff. If it were, the injustice would of course be rectified. But a judgment is not unjust because it is said to be so and intuitive feelings of -justice are, I think, a poor substitute for the application of the rules of law: The National Insurance Co of New Zealand Ltd v Espagne 105 CLR 569 at 572. I am reassured by the fact that, in this case, all do not have such intuitions. In my opinion, therefore, the appeal should be dismissed with costs. Meagher JA This unsatisfactory case, heard in the Court of Appeal in March 1990, involves an industrial accident which occurred on 15 October 1974, the trial concerning which before Lusher J took place in July 1982. There was thus eight years between injury and trial, and another eight years between trial and appeal. These inordinate delays are almost solely attributable to the conduct of the plaintiff, the present appellant. The defendant company has long since ceased to carry on the business in which the plaintiff was employed. In the upshot, the Court of Appeal has to consider the social circumstances which obtained sixteen years ago and the proper range of damages which obtained eight years ago, tasks which the lapse of time has scarcely enabled it to undertake with confidence. The plaintiff was a general labourer whose tasks involved working in the defendant's factory in a room in which a number of cylinders were stacked on pallets. The evidences does not disclose anything more specific. In some way, which is entirely unexplained, the plaintiff's left hand was severely injured by one of the cylinders falling off its pallet. One of the few facts which is clear is that, as a result of the injury, the plaintiff lost 60%-100% of the use of the middle finger of his left hand, and 20%-50% of the use of the ring finger on his left hand, amounting in all to a permanent 20% loss of the use of his left hand. He was, however, dominantly right handed. One of the many unsatisfactory aspects of the case is that, in the light of his Honour's findings, the evidence does not disclose exactly what activities his injury precluded him from undertaking, although his Honour found (and the finding is not challenged) that he was after the injury "capable of some degree of fine and dexterous movements with the left hand". His Honour was minded to find for the defendant on both of the causes of action on which the plaintiff sued, viz. negligence and breach of statutory duty; principally on the ground that no breach of duty on the part of the defendant was ever demonstrated. However, before completing his reasons, his Honour received an intelligence from the defendant's counsel conceding liability. His Honour, therefore, found a verdict for the plaintiff in the sum of $1,511.12 (no part of which, we were informed, ever found its way into the plaintiff's pocket). The sum of $1,511.12 was arrived at in the following way: 1. Out of pockets (as agreed) $1,402.86 URJ ADEL BALLOUT v VICKERS RUWOLT PTY LTD (Meagher JA) 17 2. Loss of wages and 21,674.04 interference with earning capacity 3. General damages (past 12,500.01 and future) Total: od Less Workers Compensation 33,262.7: Act payments Accident pay 803.00 Verdict 1,511.12 The plaintiff, as appellant before us, challenged the adequacy of items 2 and 3. One of the many problems facing the appellant was his Honour's finding on his credibility. On this matter his Honour said: "T found the plaintiff an unsatisfactory witness as to his manner and demeanour and was not at all satisfied with this evidence as to his efforts to obtain employment and I did not accept his evidence. Over the last two and half years his wife has worked and although in May, 1980 payments to him under the Workers' Compensation Act ceased, there has been no attempt on his part to have them restored. His evidence as to his activities was also unconvincing and I do not accept him on these matters." This was a finding which the appellant, rightly in my view, conceded he was unable to challenge. It does, however, have the consequence of diminishing very considerably the evidence on which this Court can rely. Dealing first with the challenge to item 2 (the amount of $21,647.00), counsel for the appellant demonstrated that his Honour had committed a minor arithmetical error and the amount should be, on his Honour's own method of calculation, the sum of $21,785.00. However, he conceded that the difference is so small as not of itself meriting the intervention of an appellate court. A more substantial objection to this item consisted of the submission that fundamental to his Honour's calculations was an unjustified acceptance of the view of Dr Furber that at the date of trial the plaintiff "was in all probability fit for his usual work". This leads to a consideration of what is to my mind the most unsatisfactory feature of the whole unfortunate trial. Evidence was tendered, on behalf of both parties, from many medical practitioners, seven of whom were Dr Selby Brown, Dr Furber, Dr Greaves, Dr Bloch, Dr Rose, Dr Stratton and Dr Spence. When I say "evidence was tendered", I mean that reports from those six gentlemen were tendered and admitted without objection. Neither counsel (who, of course, are different from the counsel who appeared on the appeal) sought to cross-examine any of the six gentlemen. This would be an acceptable course if they said the same thing. However, they did not. When, as here, counsel elect not to cross-examine medical experts, in cases where there is a conflict on the medical issues, the trial judge is placed in an impossible condition: how can he determine which piece of paper deserves reliance? The problem is particularly acute when, as in the present case, the plaintiff cannot be believed. Dr Selby Brown, who saw the plaintiff on numerous occasions between the accident in October 1974 until March 1976, on each occasion certified him as unfit for his pre-accident employment. That is not of great assistance, as he does not say for what (if any) employment he was fit. Dr Greaves, who saw him in July 1977, opined that "He is fit for many types of employment but is unfit for work 18 UNREPORTED JUDGMENTS which requires normal dexterity with the left hand". That is a slightly more illuminating report, but does not indicate which forms of employment the plaintiff was fit to perform, nor whether his pre-accident job required "normal dexterity with the left hand". Dr Rose, who saw him in September 1980, stated "Tt is difficult to see why this patient has remained unemployed these past six years. Certainly, he could not do his work as labourer at Vickers Harfields where he was employed in handling steel production. There are other lighter jobs suitable for a right handed man who has a damages left hand." Dr Stratton in October 1981 said "T believe he is fit for many types of light manual employment as his right dominant hand is still fully functioning. It is conceded that he would have difficulty in heavy labouring tasks when he would be required to use the left hand under stress." Those were the reports tendered on behalf of the plaintiff. The defendant tendered a report from Dr Furber of November 1975 which concluded "He is fit for his usual work", a conclusion which he reiterated in July 1976. In April 1980 he was seen by Dr Spence, whose report was also tendered on behalf of the defendant. That report stated: "This degree of disability would impair his efficiency for doing heavy work requiring full use of his left hand. It would not render him totally unfit. He would be able to do many forms of labouring work and all forms of light work. It does not appear to me that injury is sufficiently severe to justify him being off work for six years." The final report tendered on behalf of the defendant was from Dr Bloch, who concluded: "He would be fit for all forms of duties including labouring and lifting. I am amazed that he has been off work all this time." Whilst it is obviously impossible to reconcile all these opinions, it is, I think, clear from their general tenor: first, that for a year or so after the accident, the plaintiff was unable to perform his pre-accident work, and perhaps any heavy labouring work; secondly, that from about 1976 until trial he was able to do non-labouring work and probably light labouring work; thirdly, that in addition he was able from about mid 1977 to do some work involving heavy labouring and possibly even his pre-accident work. Thus, there was, about from the date of the accident, a whole range of jobs he was capable of performing. He did not take any job. He gave evidence that he tried to obtain employment, but he was disbelieved on this issue. His Honour computed his damages on the basis that he was unfit for any type of employment until July 1977 and was thereafter fit for work. A challenge to this finding cannot be sustained, particularly in the light of his failure to appeal against his employer's decision to cease Workers Compensation payments. Indeed, his Honour's findings may be a trifle too favourable to the appellant: he was not unfit for all types of work before July 1977, but was fit before that date for at least a wide range of light work both labouring and other. As to the appellant's challenge to item 3, general damages ($12,500.00), bearing in mind they are expressed in terms of 1982 dollars, I am of the view that whilst they are not lavish they are nevertheless not so excessively low as to warrant the intervention of an appellate court. The appellant also sought a sum of damages by way of interest. No interest was sought at the trial. I do not see why it should be awarded now when the appellant's legal advisers did not bestir themselves to seek it in the eight years of their deliberations between 1974 and 1982. The appeal should be dismissed with costs. URJ ADEL BALLOUT v VICKERS RUWOLT PTY LTD (Meagher JA) Appeal dismissed with costs. Counsel for the Appellant: JA McIntyre Solicitors for the Appellant: Vandervords Counsel for the Respondent: CC Branson QC and JP Sewell Solicitors for the Respondent: AO Ellison and Co