GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v KELLY SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS AP, CLARKE and MEAGHER JJA 24 October 1990, 24 October 1990 [1990] NSWCA 77 KEY WORDS: DAMAGES DAMAGES — quantum — no question of principle. ORDER Appeal dismissed with costs. Samuels AP The plaintiff in this action, which was heard by his Honour Judge Lloyd-Jones in the District Court at Parramatta, was born on 11 July 1970 and sustained an injury to her right knee in a motor car accident which occurred on 11 March 1984 when she was about thirteen and a half years old. She struck her right knee on the back of the seat in front of her and, because pain ensued, was taken by ambulance to Westmead Hospital on the day of the accident. She had an x-ray, which showed no fracture or dislocation. She returned to the clinic at Westmead on 16 March complaining of pain over the right patella, where there was a small effusion but full range of movement. She returned two weeks later, when on examination there was neither swelling nor effusion. There was full range of movement but the plaintiff complained of tenderness over the right patella. The action came on in September 1986 and on that occasion medical reports were placed before the learned judge, together with some medical information from a Dr Jayasinghe, who was apparently the plaintiff's local medical practitioners and for whom later she worked as a receptionist or secretary. Dr Donaldson, an orthopaedic surgeon who had examined the plaintiff at the request of her solicitors, said that she was suffering a post-traumatic chondromalacia patellae which should heal progressively. She required no surgical treatment and I gather, although the language of the report is not entirely clear, that he did not think that she would develop degenerative change in the future. That was the only evidence. The Government Insurance Office had retained a Dr Cunningham, who had examined the plaintiff and had expressed very much the same views as Dr Donaldson. However, he added that the history was suggestive of a meniscal injury but that there was little clinical evidence to support that diagnosis. He added: "I feel an arthrogram would help clarify this diagnosis." The learned judge decided that it would be unsafe to proceed to assess damages in that state of the evidence. He appears to have regarded Dr Donaldson's opinion as inadequate in some way, possibly because it was not very favourable to the plaintiff. His Honour noted that the plaintiff was an infant, although of course he was not being asked to approve a settlement but merely to hear an adversary contest between parties. Notwithstanding that - and, I might add, notwithstanding some protests by counsel then appearing for the defendant - his Honour adjourned the hearing for a period which turned out to be some eighteen months. 2 UNREPORTED JUDGMENTS When the trial resumed in March 1988 the plaintiff gave evidence of deterioration of her knee, that she had twice fallen because of its instability, and had suffered some locking. She was working for Dr Jayasinghe with some difficulty because she could not bend her knee to sit easily and was obliged to carry out her work at her desk with her leg fully extended. On that occasion Dr Cunningham's report was tendered and, in addition, a report of Dr Taylor was offered, he having examined the plaintiff at the request of her solicitors. Dr Taylor, to whose report I will come again in a moment, also made reference to an arthrogram and an arthroscopic examination of the knee joint with apparent approval; that is to say, he says: "IT have advised her to consult her treating orthopaedic surgeon, who will probably carry out further investigations in the form of an arthrogram and probably an arthroscopic examination of the knee joint." As far as the evidence goes, the plaintiff did not have a treating orthopaedic surgeon and had indeed been given no treatment of any kind, save exercises to her quadriceps, or possibly some other form of physiotherapy. No doubt with the references to arthroscopy in mind, the plaintiff gave evidence that she had been told certain things by Dr Taylor about that procedure and that she had seen people come into her employer's surgery who have had that sort of procedure done, to whom she had spoken, and she had decided that she would not have it performed. In cross-examination she agreed that it was mainly what other patients had told her that had led her to conclude that she did not want to have "this operation". The learned judge found, in reliance upon Dr Taylor, that the plaintiff had a very serious problem with her right knee, which had persisted for four years and was likely to persist indefinitely into the future. The condition, in his opinion, was getting worse and was permanent. It had already made a very big impact on her social and working life. Obviously the learned judge accepted the plaintiff as a witness of truth and her complaints and during the eighteen months which had elapsed - indeed on the day before the resumed hearing commenced - fresh particulars had been filed and served in which a general claim for reduced earning capacity had been made. The learned judge then awarded the plaintiff damages of $50,000 for pain and suffering, loss of amenities and so forth, including in that sum an economic component (which was not specified), and interest on $10,000 of $3000 over the period, making a judgment of $53,000 in all. The defendant appeals against this assessment on the general ground that it was excessive. I think this is a deplorable case, for two reasons in particular. First, because it seems - I stress the word because I have access only to the evidence - that the plaintiff has had no treatment of any kind. She is a young woman now of about eighteen years. Her injury occurred when she was thirteen or so and if her evidence is believed - and the learned judge did believe it - she has suffered pain and discomfort over the intervening years, which all the medical opinion (except for Dr Jayasinghe, who does not address the question) suggests might be alleviated by a diagnostic procedure followed by surgical intervention. Secondly, the defendant at the trial made no attempt, as counsel has fairly and frankly told us, to run a mitigation case, for which the circumstances cried out, I would have thought, in stentorian tones. After all, medical opinion had recommended an arthroscopy. One infers that it is a procedure therefore which all of them thought reasonable and normal in this type of case, which the plaintiff, mainly because of what other lay persons had told her, refused to have. However, UBMVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v KELLY (Clarke JA) 3 no attempt was made to discharge the onus, nor indeed was any attempt made to explain with clarity what an arthroscopy involved. I suppose that we are strictly not permitted to know that fact, although of course all of us do. At least we were told, without objection, from the Bar table that the diagnostic procedure involves the insertion of a small calibre tube into the knee, through which an illuminated view may be had of the contents of the joint and any derangement which exists there. However, that case was not made and I should therefore not speculate as to what its result might have been, except that on the material before us it must at least have been given a reasonable chance of success. For my own part, I have considerable doubt whether it is possible to drag out of Dr Taylor's report material sufficient to support the learned judge's finding. I should, I think, quote the whole of p2 of Dr Taylor's report: "Opinion: I feel Miss Kelly has had quite an appreciable injury to her right knee. She has significant quadriceps wasting, although the tone in the quadriceps is generally good. She gets pain on trying to do her quadriceps exercises. I feel she has mild to moderate chondromalacia of the articular surface of the patella and I feel she has probably done some damage to the medial meniscus of the knee joint. At present I feel she has 12 per cent disability in her right leg due to the condition of the knee joint and the prognosis for its improvement must be very guarded indeed. I have advised her to consult her treating orthopaedic surgeon, who will probably carry out further investigations in the form of an arthrogram and probably an arthroscopic examination of the knee joint. Fitness for work: She manages to carry on with her work as a typist but I feel she will be permanently unfit to be a hairdresser. I feel if the arthroscopic examination finds a torn medial meniscus it is possible that operative treatment may considerably relieve the condition of her knee joint, although it is possible that to some extent the chondromalacia of the articular surface of the patella will persist." In that he certainly expresses the view that an arthroscopic examination might provide the means of considerable relief of the condition of the knee. Nonetheless, it was not done. The plaintiff has declined to have it and no attempt was made to reduce her damages on that account. If one assumes then that she will not have it (or indeed any other treatment), I suppose it is just possible to regard Dr Taylor's report as supporting the finding and, that being the case, it is not for this Court, in my view, to intervene. If one does accept the finding then of course the assessment of damages, though even still on the high side, is certainly not open to review in this Court. That being the case and, I must confess, for reasons that I think I have clearly stated, with considerable reluctance, I think that the only order that this Court can make is that the appeal is dismissed with costs. Clarke JA I agree. If the mitigation issue had been run at the trial the position may well have been different. But, as it is, that issue was simply put to one side or, in effect, treated as non-existent. In those circumstances, it seems to me it was open to his Honour to come to the conclusion that the respondent had suffered an injury which was of some real significance and which had led to permanent disability. In some ways the attitude taken by the appellant at the trial led to an assessment of damages on a somewhat artificial basis. But that was the way it chose to conduct the case and, on the facts as led, the conclusions to which his 4 UNREPORTED JUDGMENTS Honour came were open to him. I do not think it can be said that the final assessment was beyond the bounds of reasonableness. I agree with the orders proposed. Meagher JA So do I. If the appellant has a complaint about the excessiveness of the plaintiff's verdict below that complaint is solely attributable to the fact that at the trial it did not pursue the one issue which apparently strongly favoured it; namely, the plaintiff's refusal to mitigate her damages. The appellant itself having failed to make this case at the trial, we can hardly make that case on its behalf on the appeal. In those circumstances it is inevitable that the appeal should be dismissed with costs. Appeal dismissed with costs. Counsel for Appellant: RC Tanner Solicitors for Appellant: Mr G Leeds, Parramatta Counsel for Respondent: AJ Lidden Solicitors for Appellant: Champion and Partners