GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v BERMINGHAM SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, CLARKE and HANDLEY JJA 20 June 1990, 7 December 1990 [1990] NSWCA 75 Appeal from District Court — Assessment of damages — Injury to right leg — Right ankle and right knee — Contest as to assessment of Plaintiff's economic loss — Assessment of discount for contingencies — General damages $50,000 — Not appealably excessive — No error shown — Appeal dismissed with costs — No issues of principle. Mahoney JA On 6 April 1985 the plaintiff was injured in an accident for which the defendant has accepted responsibility. On 1 February 1989 Moore DCJ gave judgment for the plaintiff against the defendant for $287,000. The defendant has appealed to this Court against his Honour's judgment. His Honour's judgment was made up of the following components: General Damages $50,000 Out-of-pocket expenses 258 Past economic loss 43,074 Interest on past economic loss 10,733 Future economic loss 182,993 $287,058 His Honour rounded off the amount of the judgment and awarded $287,000. In order to understand the grounds on which the appeal has been pressed, it is necessary to refer briefly to the facts on which his Honour's judgment was based. The plaintiff was born on 13 April 1961 and was therefore 23 years of age at the date of the accident. He left Canowindra High School in 1976 after three months in second form. After leaving school he had worked as a seasonal worker, a packer, a driver and a labourer. His Honour's conclusion was that his economic future lay in work of that kind. At the time of the accident the plaintiff had, as his Honour found, "achieved a well paid position" as "an offsider to a meat truck driver with the possibility of promotion in the future to the position of driver". The driver and the offsider in such work would be engaged on a casual basis but his Honour concluded "it was work that was readily available and the plaintiff could reasonably expect it to have continued indefinitely". The work involved the transport of animal carcasses from Cowra to butchers' shops at various places. It was the duty of the offsider to lift the animal carcasses down "a difficult ramp with manhandling of the carcasses both in the truck and in butchers' shops. The norm was to lift three sheep carcasses weighing from 15 to 20 kilograms each at a time and one beef carcass weighing upwards of 50 kilograms". The truck would leave Cowra in the evening and be unloaded at 2 UNREPORTED JUDGMENTS different butchers' shops, ranging from 15 to 48 on a run. It would then return to Cowra, sometimes with a back load. The plaintiff worked on an average three runs each week. His Honour concluded that "the normal practice was that offsiders would progress to work as drivers and provided he worked well - and there was no evidence that he did not - the plaintiff could have expected to be a driver in due course". The plaintiff was injured. The hospital report from the Campbelltown Hospital indicated that the plaintiff had suffered a sprained right ankle. There was a comminuted fracture of the medial malleolus with all fragments in good position but considerable involvement of the articular surface. A small fragment was separated from the tip of the lateral malleolus as well and there were lacerations of the tips of the fourth and fifth toes. In his report of 6 September 1986 Dr John Voss, a consultant physician in rehabilitation medicine, stated the plaintiff's injuries as: "1. Fracture of two bones in the right ankle. 2. Cuts on the toes of the right foot which healed quickly to leave no residual disability. 3. Painful right knee." There was contest as to the effect which these injuries had had and would in the future have upon the plaintiff's working capacity. His Honour said that he accepted the plaintiff's evidence "without reservation" and that he considered that the plaintiff "has understated his case". No medical witnesses were called at the trial and his Honour was required to form his conclusions from his assessment of the plaintiff's evidence and written medical reports by doctors. His Honour said: "The plaintiff's treating doctors have been prepared to be optimistic and to some extent stoical on their patient's behalf. Dr Kumar and Dr Sprigge are in point. This may well be the result of the plaintiff's displaying to them the same belittling of his complaints as he did to Mr Guihot. Even so, Dr Sprigge, (report 22 June 1987) after saying that the plaintiff's working capacity is reasonably normal, said: "However, he is finding that standing on the foot and a lot of activity, does give him symptoms. Therefore, one might say that heavy labouring tasks could be beyond him. Certainly in the short term. However, one would expect the injuries to become less noticeable in the medium term, but may become again worse in the long term, if osteo-arthritis ensues in the joint, due to the damage of the articular surface of the bones. This cannot be predicted with certainty as the problems may not get worse. However, I feel it should be provided for in any assessment of his disability.' Later in the report, Dr Sprigge said: "... further stiffness of the ankle due to arthritis developing in later years could increase the disability at the ankle joint itself, and if total stiffness was to occur, it would be equivalent to a 30 per cent impairment of the lower limb, equal to a twelve impairment (sic) of the whole person.' The plaintiff was examined by Dr Voss, consultant physician in rehabilitation medicine, for the purpose of qualifying Dr Voss to give evidence. Dr Voss said in his report of 9 September 1986: 'It is but sixteen months since the initial injury and with normal activity on his part the slight restriction of joint range may well disappear. Because of the demonstrated irregularity in the articular surfaces of the ankle joint (particularly \WRQVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v BERMINGHAIG (Mahoney JA) that related to the fracture of the medial malleolus) one cannot be confident that pain produced by overuse will completely disappear. Indeed, there is a good chance that the subject will be pre-disposed towards acceleration of degenerative arthritic changes in the joint, because of this irregularity affecting the joint surface. Most likely, in the short term, he will become more tolerant of prolonged standing and undertaking heavy activities on the ankle, and be able to squat a little easier, but may well experience significant pain, sufficient to limit activity, performing heavy work, or after an arduous day's work on the feet. The extent to which this limits his future activities may only be tested by what transpires with the passage of time. On the other hand looking at things a little further ahead, particularly once he gets into the fourth and fifth decades, if there is acceleration of degenerative processes (which may well occur) there may be increasing restriction of his ability to stand, walk far, squat etc, depending upon weight gain and his individual susceptibility to degenerative changes in the cartilage of joints. At present he is capable of self care, and likely to continue to be so for the rest of his life. He may well have significant problems attempting very heavy work, or spending all day long on the feet undertaking work of a moderately heavy nature. In the long run his capacity to sustain work standing all day, walking all day, and certainly doing heavy work, or work requiring squatting, could be compromised to the point where he could not satisfy an employer. He would be advised to seek employment that does not involve 'heavy labouring', for example, driving. If he suffers discomfort in the right ankle with prolonged driving transfer to the left foot, particularly as many large trucks nowadays have automatic transmission, would be feasible. He is fit, and likely to remain fit for sedentary or semi-sedentary process work (being able to rest, say ten minutes every hour, particularly as he gets older), and while he is young should be able to cope with light cleaning (this may not be possible if degenerative changes supervene as he gets older). He is not suited for re-training for clerical work. His immediate employability will depend upon the availability of suitable jobs near his domicile (I presume these are not in profusion) and his inclination to undertake activities which may cause him some pain in the ankle for the next few months.' This seems to me to give an acceptable picture of the plaintiff's condition, granted that it was some time since Dr Voss examined the plaintiff, although from the evidence given by the plaintiff it is apparent that the ankle has not improved and it was in that median stage that has been described by the doctors and which will probably, in view of the serious radiological findings, develop into a more serious arthritic condition as predicted by Dr Voss." His Honour accepted that there had been injury to the plaintiff's right knee and that that had come about "as a result of the accident, from extra stress on the knee, or from favouring the ankle". His Honour concluded that "it seems to be now near recovery, if not recovered, and to overlap the ankle detriment without calling for separate assessment". The plaintiff gave evidence of difficulties which he had had between the date of the accident, 6 April 1985, and the time when evidence was taken at the trial. He had attempted to return to work with his previous employer, the Finemore company, in mid-1985 but had not been able to sustain the work. He had returned to work in September 1985 but had left work there for reasons not necessarily connected with his condition. He had tried other work, including work in a bakery and in mushroom growing. He had complained of difficulty with the 4 UNREPORTED JUDGMENTS condition of his leg. His Honour concluded, I think, that he had genuinely endeavoured to mitigate the economic loss prior to the date of the trial. The plaintiff referred, for example, to the mixed work in the mushroom growing employment, involving forklift driving and the driving of hayloaders and the like. He indicated that, in unloading material, "it makes my leg go weak" and that sometimes at the end of the day he gets pain. He said that "every morning I have about half an hour of loosening up". "You can feel the pain sometimes but it is not great pain". He said that the condition of his leg slows him down from being more active and that if he did too much, "you end up limping around, so I just stand back mostly". He can jog but cannot run "very quick". He says that lifting things brings pain in the right knee, that he can't walk "sideways" and therefore has difficulty on hills and that in respect of standing he has difficulty "only for a long period of time, just a little bit, but I can't stand for long periods". "Just standing there, it is more uncomfortable". When asked about going back to his employment with the Finemore company he said he probably could go back. "I am not real sure. I'd have to actually do it but it is a matter of walking on that ramp and I don't know how I would go. I just couldn't say. If the opportunity came, I'd give it a try". Mr Shore, for the defendant/appellant, made a number of submissions in respect of his Honour's assessment. His main submissions were: that his Honour had erred in the assessment of the plaintiff's economic loss because the plaintiff was not unfit for work as an offsider with the Finemore company; that uninjured he would not have progressed to become a driver with that company; and that the earnings of a driver at that company were not a fair measure of the plaintiff's future loss. He submitted that a fifteen per cent discount was too small and that the general damages awarded were too large. And he submitted that his Honour had erred in determining why the plaintiff had left the Finemore employment because he had wrongly taken into account hearsay evidence. There is considerable force in Mr Shore's submissions and, for myself, I have not found the determination of the matter free from difficulty. His Honour based himself to a significant extent upon the submissions made to him by Mr Coleman, counsel for the plaintiff. These submissions involve, inter alia, the assumption that the plaintiff was not fit to return to the heavy work in the Finemore occupation and that, had he not been injured, he would by about October 1986 have progressed to the more highly paid position of driver. I am satisfied that the plaintiff was having difficulty in coping with the work in the Finemore company when he returned to work in September 1985. I shall assume without deciding that the reason why the plaintiff left the Finemore company related more directly to matters other than his physical condition. But T accept that had he remained he would have found the work then too difficult to sustain. But a more difficult question arises in determining whether, for the future from the trial onward, he would not have been able to continue with work with that company. Judging the matter simply upon the plaintiff's evidence as appearing in the transcript, there is, as Mr Shore submitted, material supporting the conclusion that the plaintiff may well have been able to do the work and that he was willing to try. Passages appearing, for example, in cross-examination, suggested this. However, the learned judge said: "The plaintiff was a witness of the type that one occasionally encounters: he is so anxious to please and not to embroider his case that he will agree with a cross-examiner at the apparent expense of the objective facts underlying his case. There were two major examples of this. The first I deal with at once. The plaintiff agreed with Mr \WQWVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v BERMINGHAN (Mahoney JA) Guihot, counsel for the defendant, that he would have been able to do his old job as an offsider by August of 1985, with discomfort. He agreed also that he could have done his heavy work at Finemores when he got his licence back after a period of disqualification, in October 1986. It was my clear impression that he was here carried away with his desire not to offend the cross-examiner and the true position was, as he said in his evidence in chief, that he was suffering significant discomfort when he attempted the Finemores job and that there was no indication to his mind, based on that trial, that he would have improved. His subsequent history bears that out." And his Honour referred to "some much lighter work" in which the plaintiff "has found his ankle unequal to the task". Such an assessment of the plaintiff lies in my opinion within the function of the trial judge. I do not think that, in the context of the evidence as a whole, this Court can or should conclude that his Honour's assessment of the plaintiff in his evidence was incorrect. His Honour also accepted that, had he remained with the Finemore company, the plaintiff would, by about October 1986, become a driver. A driver was more highly remunerated in the position and his Honour, in calculating damages, acted upon such a basis. It was submitted that it was wrong to conclude that the plaintiff would have progressed to the position of driver. There was, however, evidence upon which such a view could be formed. Mr Gaudry, a driver with the organisation, said that the change occurred "... just generally, other blokes leaving and you sort of step up and do apprenticeship as an offsider till you know what you are doing and they think you can drive, they will put you behind the wheel and let you go". There were difficulties with the plaintiff's licence as a truck driver and a conviction which resulted in a suspension of his driving licence. But there was, in my opinion, evidence to warrant the conclusion his Honour made. The assessment of what the future held for the plaintiff depended on a number of uncertainties but, in my opinion, it was appropriate for the judge to conclude that, uninjured, the plaintiff would have progressed in that way. I see no error in this part of his Honour's judgment. It was then submitted that the uncertainties of the plaintiffs economic position were such that the ordinary discount of fifteen per cent for contingencies did not take proper account of them. And, the submission was, the nature of the heavy labouring which the plaintiff was doing would involve that his working life would cease, or the economic returns from it would diminish, at a stage earlier than his Honour took. The calculation of the uncertainties inherent in an economic future such as the plaintiff had is difficult. But I do not see in the plaintiff's future, uninjured, difficulties which are different in kind from those apt to be evaluated in the case of other persons involved in labouring activities. The selection of the discount factor which his Honour applied is not shown to be wrong. Mr Shore's submissions suggested, overall, that his Honour's assessment of the plaintiff's economic future, both uninjured and injured, was over-generous in the plaintiff's favour. There is force in this submission, particularly if the matter be dealt with upon the terms only of the evidence as appearing on the transcript. But, as I have said, his Honour's assessment was significantly affected by the view which he took of the plaintiff and the way in which he gave evidence. Mr Shore rightly submitted that a conclusion that the plaintiff is not exaggerating does not warrant a conclusion that his case is more serious than he has said. But a judge is, in such a case as the present, entitled to make an overall assessment 6 UNREPORTED JUDGMENTS of what the future would have been and will be for the plaintiff. The continuation of the pain and difficulty in the plaintiff's leg must, I think, be significant for his future. The effect of it on him in the labour market must be taken into account. I do not think that his Honour's conclusions in this regard have been shown to be erroneous. His Honour awarded $50,000 general damages. The defendant has submitted that this is appealably excessive. It is undoubtedly high. However, in the end Iam not satisfied that it is beyond the range of the discretionary judgment which his Honour was required to exercise. There is, as at the date of trial, a continuing difficulty. Reference was made in the medical evidence, eg, of Dr Voss, to the possibility, which the doctor felt might well occur, of the acceleration of degenerative processes involving increased restriction on his ability to stand, walk far, and squat. The doctor's statement that the plaintiff is fit "for sedentary or semi-sedentary process work (being able to rest say ten minutes every hour, particularly as he get older)" and his statement that "... while he is young (he) should be able to cope with light cleaning (this may not be possible if degenerative changes supervene as he gets older)" provides, I think, a measure of the problematic state of the plaintiffs future. I am not satisfied that, in the assessment of general damages at $50,000, the judge went beyond the range of a sound discretionary judgment. For the reasons which I have indicated, I do not think it necessary to deal in detail with Mr Shore's submission that his Honour, in arriving at his conclusion as to the reason for leaving the Finemore employment, acted upon inadmissible evidence. As I have said, I have not found the decision of this appeal easy. The amount awarded, $287,000, is a large sum for the injuries which the plaintiff has suffered. I am conscious that, subject to the restrictions to which appellate courts are subject, this appeal is by way of rehearing. But in the end, I am not satisfied that this is a case in which this Court should intervene. In my opinion the appeal should be dismissed with costs. Handley JA I agree that this appeal should be dismissed for the reasons given by Mahoney JA. Clarke JA I agree with Mahoney JA. Appeal dismissed with costs. Counsel for Appellant: HG Shore Solicitors for Appellant: A Lee Counsel for Respondent: BHK Donovan QC with P Coleman and P Stockley Solicitors for Respondent: Garden and Montgomerie