GOVERNMENT INSURANCE OFFICE OF NSW v GOYKOVIC SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KiRBY P and MEAGHER and HANDLEY JJA 10 May 1990, 10 May 1990 [1990] NSWCA 70 DAMAGES — personal injuries in motor collision — female plaintiff 47 at trial — $75,000 for general damages — severe facial and dental injuries — several teeth broken — 5 months dental treatment — cosmetic injury — horseshoe shaped scar on front of chin — photographs taken immediately after injury show disfigurement — no later photographs available — plaintiff not in court at hearing of appeal — held: damages not so high that Court should interfere. Ralevski v Dimovski and Anor (1987) 7 NSWLR 487 referred to. APPEAL — damages for personal injury — cosmetic injury- photographs — observations on the desirability of photographs of cosmetic condition at or near the time of trial so that, in the event of an appeal, the defendant can overcome the advantage which the trial judge otherwise has of seeing the plaintiff. 'ye of ae ae fe ae ae fe oft ae ae afta ae ae afta ae ae oie 2 ae oe a ok aah aka Appeal dismissed with costs. Meagher JA The plaintiff in this case Mrs Goykovic, who is the present respondent, was involved in a motor car accident, a head on collision, on 28 February 1986. The offending vehicle, for whom the present appellant is responsible, has admitted liability, and the question which concerns us, and the only question which concerned his Honour, was the question of quantum of damages. The collision itself was one of some violence which caused the plaintiff to collapse with shortness of breath. When she was released from the wreck of her motor vehicle she was bleeding. She was treated at the Hornsby Hospital for four or five hours and thereafter released. But her injuries were, on any view, quite considerable and his Honour ended by giving her a verdict of $83,843.77. Of that figure the chief component was $75,000 for general damages, which the present appeal challenges. His Honour accepted that the plaintiff was a witness of unquestioned and unquestionable honesty, who tended to under play rather than exaggerate her disabilities. In no important respect was her evidence challenged. She, on any view of it, suffered various types of injury. In the first place she suffered very severe facial and dental injury to the lower lip and the chin. Several of her teeth were broken and she undertook five months of dental attention of a fairly serious kind. For some of that time her pain was so intense that the dental attention had to be postponed. It is probably true that no further dental attention is immediately required, but it is perfectly clear that at the time of trial, and for all one knows still, she suffered injuries to her lower lip and her chin. There is a numbness on the right hand which one of the doctors described as conditional functional disability. She has difficulty in eating correctly and she dribbles, a fact which causes her embarrassment, which to my mind is entirely understandable. She also has headaches. But most of all she had a very bad facial scarring. 2 UNREPORTED JUDGMENTS The photographs which were taken a day after the accident make the scarring look very disfiguring indeed. To what extent it has dissipated the evidence does not entirely make clear. But one thing is clear, it still existed in some significant form at the date of the trial and further progress in that respect is unlikely. As far as her orthopaedic injuries are concerned she had injuries to her chest, suffering from a broken sternum and that has continuing residual problems. It means that when, for example, she runs, she gets a sharp needle-like pain and it also means that when she coughs or sneezes she suffers extreme chest pain. She has injuries to her neck, for which she has received physiotherapy and for which she will need further physiotherapy in the future. She has a bad injury to her back. There is some dispute as to whether it was the upper, middle or the lower back which was injured. To my mind it is entirely irrelevant where the precise injury was, because on all accounts it was agreed she did suffer a back injury as a result of that, to give her postural problems which may or may not be permanent. That means that she cannot sit for lengthy periods, but she must get up from her seat every couple of hours. This is a complaint which is particularly aggravating towards the end of a week. This is a disability which is of some gravity when her occupation is that of accountant and bookkeeper. She also suffered some fairly minor psychological ill effects in a marked nervousness in motor cars. That has stabilized as much as it ever will stabilize and continues in some degree. Whereas formerly she played sport, after the accident she could not do so, and as far as domestic duties were concerned she has to call on the assistance of her mother when she finds, as she occasionally does, that the performance of normal domestic duties is beyond her ability. Counsel for the appellant, in very careful argument, attacked his Honour's findings on three grounds. The first ground was his Honour should not have found that her facial and dental disabilities were permanent. This may be correct as far as dental disabilities, so called, strictly speaking are concerned. In fact his Honour was perfectly correct as far as facial disabilities were concerned. Her numbness in her jaw and her eating problems do not seem to have evaporated and there is no evidence which compels a conclusion that they could. So that overall, his Honour's finding that the facial and dental condition were permanent, seems to me, to be sufficiently accurate. It was next contended on behalf of the appellant that insufficient weight was given to the expert orthopaedic evidence about her spinal and chest injuries. The orthopaedic evidence in this regard was certainly a little on the optimistic side, but far from positive, that these disabilities would disappear. Whereas, the general trend of the plaintiff's general practitioner's evidence was that her position had plateaued. In view of the evidence as to her spinal and chest condition at the date of trial, I see no reason why his Honour should not have accepted the verdict of her general practitioner. The final submission made by counsel for the appellant was that overall the general damages were too high. Although in making this submission he did fairly concede two factors which I think are of overall major importance. One is, the plaintiff suffered really quite intense pain for at least five weeks after the accident and, secondly, that on any view of it, some of her disabilities are continuing and probably permanent. URJ GOVERNMENT INSURANCE OFFICE OF NSW v GOYKOVIC (Handley JA) 3 Although minds may differ on the matter, in my view, it would be quite erroneous to suggest that $75,000.00 was too large an amount for the present plaintiff. Much less so large as to acquire the intervention of the Appellate Court. In those circumstances I propose that the appeal should be dismissed with costs. Kirby P I agree. In deference to the arguments which were put most thoughtfully to the Court by counsel for the appellant, I would only add this. One of the difficulties the appellant faced in attacking the size of the general damages was that an obvious component of those damages was the allowance made by the trial judge for cosmetic injury. His Honour had the advantage of seeing the respondent. We have not. We had Exhibit B. This comprised two photographs taken immediately after the subject accident. As Meagher JA has pointed out, they disclose very serious facial injuries on the front of the respondent's face. They show a horseshoe shaped scar which is most prominent. At the time of the photographs it was disfiguring. The Court was not given the advantage, which it sometimes has in these cases, of the opportunity to see the respondent. The respondent was not in Court during argument. Counsel for the appellant informed the Court from the Bar Table (although not by evidence) that the respondent was in the precincts of the Court. She was not brought forward. Therefore, we did not have her current appearance by which to assess the fate of the scars which looked so serious in the photographs that were tendered at the trial. We therefore did not receive evidence of her current condition or even of her condition at the trial. Nor could we see her appearance now as a means of understanding the way Levine DCJ weighed the matters that were before him. I recognise that this puts the appellant at something of a disadvantage in this Court. However, but it is a disadvantage which has not been cured by evidence which was available at the trial, to which this Court could have had regard. For example, up to date photographs could have been tendered showing the position of the respondent at or about the time of the trial. They were not. Accordingly, as the matter was left on the record in this Court, the trial judge had a distinct and virtually irreplaceable advantage in assessing the damages for cosmetic injury which we do not have. Cosmetic injuries are notoriously difficult to assess. See Ralevski v Dimovski and Anor (1987) 7 NSWLR 487, 491. Views upon their impact differ significantly from one judicial officer to another. Levine DCJ had the advantage of seeing the respondent. It is clear that his Honour regarded the cosmetic disabilities as significant in her case. What part of his allowance for general damages can be attributed to those disabilities I cannot say. Without that advantage which his Honour had, I am not in a position to say that the allowance he made for general damages is so high that this Court should disturb it. Accordingly, I agree that the appeal should be dismissed with costs. Handley JA I agree with both of the previous statements of reasons and, in the circumstances, I am relieved of the obligation to express my own. I agree the appeal should be dismissed with costs. The order of the Court is that the appeal is dismissed with costs. Counsel for the Appellant: A Quinlivan Solicitor for the Appellant: JM Crestani 4 UNREPORTED JUDGMENTS Counsel for the Respondent: LA Levy Solicitors for the respondent: Schrader Coyle