THE GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v ALLEN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL GLEESON CJ, SAMUELS and MAHONEY JJA 1 February 1991, 1 February 1991 [1991] NSWCA 105 Appeal from District Court — Damages in motor vehicle accident case — $70,000 not excessive for general damages — No appealable error in assessing medical evidence or discount for vicissitudes — Appeal dismissed with costs — No question of principle. Mahoney JA The plaintiff was born on 7 October 1330. On 8 March 1985 he suffered a motor car accident which is the subject of the present proceedings. He was on his way to work. He was involved in a minor collision. That collision apparently caused what has been described as a whiplash injury. He went to work temporarily but was unable to sustain the work and went home. It is in respect of the consequence of that accident that the present proceedings have been brought On 16 August 1989, after a trial before his Honour Judge Ward in the District Court, his Honour gave judgment for the plaintiff in the amount of $214,302. That amount included $70,000 for general damages which the learned judge divided in the following manner: as to past general damages $40,000; as to future general damages $30,000. The present appeal is brought in respect of two matters. First it is submitted that in relation to the award of general damages the amount assessed by his Honour was excessive, and excessive in respect of future economic loss. It is submitted that his Honour, having discounted the plaintiff's anticipated future earnings by some 20 per cent, had fallen into error and that the amount of the discount should have been greater, of the order of 30 per cent or more. In order to appreciate the submissions that have been made, it is necessary I think to refer only briefly to the facts. The plaintiffs vehicle was struck from behind by a truck. It was described as "not a very big collision". The situation as it occurred was described by the learned judge in his judgment in the following terms: "The plaintiff went to work but was in such a shocked condition that he was not able to carry on. He filed a claim, which somebody else made out for him, and went home. He has suffered from that time pain in the neck and base of the head, across his body and down his arm, sometimes into his hand, and some lumbar, thoracic and upper limb pain. He also suffered headaches. He has limited movement, particularly of the left handjarm and shoulder and in his neck. The various areas pointed out by him were found to be tender. He was suffering from nervousness. He underwent acupuncture and manipulation and the wearing of a collar. By November 1985 his back pain had settled somewhat but his neck move ment still remained grossly restricted to one third of the normal and that condition still pertained up to 1988, although the mechanical side of his injury had subsided to some extent. 2 UNREPORTED JUDGMENTS Nevertheless, more recently it was discovered that he had two thirds of the movement of the neck only, except on rotation and lateral flexion to the left, which was very limited. He had spondylosis of the neck pre-accident which had been asymptomatic. Unquestionably the accident caused this condition to be symptomatic and it has remained so." His Honour there has described in the main the physical consequences of the accident, but the physical consequences constituted only part of the plaintiff's complaints. His Honour referred to what I shall describe as the mental elements. His Honour said: "This, however, is not the plaintiff's only problem. He has over the years since the accident become a completely changed individual. His physical condition has become utterly overladen with functional conditions which have entirely affected his lifestyle and his enjoyment of life and his capacity to carry out the ordinary functions of life. He continues to suffer headaches which require him to lie down frequently during the day. His concentration span has been affected, he lacks sleep continuously, he has become completely unsure of himself, he does not like moving out of his home, he does nothing for himself other than dress and wash himseif, and many of the other effects upon him have been indicated in medical reports which I accept as indicating the nature of the plaintiff's lifestyle for some time. He seems to have had a severe anxiety state and moderately severe depressive state. His prognosis is poor, both physically and mentally. He is easily fatigued and he suffers dizziness and tension and worry and apprehension. He has developed a habit of just ruminating and presents in this Court as a recluse. His account of how he lives his life is supported by his young daughter, who hasgiven up a large part of her life to assist him, the plaintiff, in running his own household. Other members of the family have done the same and still do the same thing from time to time. For over three years the plaintiff has been going to hospital for mental treatment. He has had drugs in aid of that treatment. He recently has been confined to that hospital, which he visits three times a week, for a month. He has not been confined to hospital recently for his neck pain but in the early days he did have some three confinements for traction treatment. I am satisfied of the genuineness of the plaintiffs complaints and condition, which is obvious observing him closely in the witness box. No doctor seems to suggest that he is malingering and each seems to accept the situation that he is unemployable totally due to his present condition, which is a combination of the effects of the accident on him physically and mentally. He presents as a man who has had a complete breakdown." It is in this context that the present submissions have been made. I shall deal first with the submissions made in relation to general damages. The plaintiff's account of his condition following the accident and up to the time of the trial was accepted by the learned judge. Subject to the kind of comments to which I shall refer, it would in my opinion amply justify an award of general damages at least of the order of $70,000. The plaintiff described what happened on the day of the accident when he tried to go to work and continue to work. He said in effect that he had screamed in pain, that his neck was stiff and that he could not see. He referred to the detail of these matters as they affected him from time to time. He indicated that he had worn a cervical collar for about one year after the accident. He described what he could and could not do before and after the accident respectively. He was then asked by his counsel in the ordinary way to describe his present problems. He dealt in turn with pain in the URE GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v ALLEN (Mahone$ JA) neck, pain in the arms, and said that he could not do much with his hands. He described how his hands went stiff. He referred to his headaches. He described a headache at the back of his head which he said "nearly drives me insane". He said that his headache came on the moment he got out of bed in the morning, he had to lie down three or four times a day and rest and then it seemed to leave him. He said the moment he got up it recurred. I am summarising the effect of his evidence. He said: "Until I lay down, until it gets I cannot stand any more and then I lay down. I don't have to sleep, 10 or 15 minutes and it seems to relieve me, while I am laying there." And he referred in detail to what he could and could not do when his hands were stiff. He referred also subsequently in his evidence to other effects of the accident. He said, for example, that he had no problems with his back other than that he could not lift properly; he had simply not tried. I do not in this judgment set forth the full detail of the evidence but the picture given by the plaintiff, if accepted, was in my opinion sufficient amply to justify the award that was given. The submission made by Mr Sutherland on behalf of the appellant was in substance (I do not purport to set out all of it) that there was in the evidence of a Dr Osman Ali, described as the treating psychiatrist, material indicating that the plaintiff had told Dr Ali things which were inconsistent with the condition as he described it at the trial and as his Honour accepted. His Honour accepted the plaintiff as a witness of truth and said, as I understand his judgment, that no suggestion had been made by any of the medical witnesses that the plaintiff was a malingerer, that is that he was deliberately misstating his symptoms or his then condition. Reference was made to the report of Dr Osman Ali of 27 April 1988 in that it was said that there were matters reported as having been said or observed in relation to the plaintiff which were quite inconsistent with the plaintiff's condition as described. In the Opinion and Formulation stated by Dr Osman Ali the following appears: "OPINION AND FORMULATION The picture is consistent with a three year long psychological problem of which two years have been witnessed by myself. This man was moderately - severely depressed at at the time when I first saw him two years ago, however he responded well to treatment over the last two years. The diagnosis entered was adjustment disorder with depressed mood DSM III 1380. This seems to have resolved due mainly to the social activity and to a lesser degree to his medication treatment. PROGNOSIS The future is now looking favourable for Mr Allen, he is optimistic and cheerful about it himself. A condition to achieve this is the maintenance of his psycho-social treatment eg group attendance and increased pleasant life events." The statements made by Dr Ali there are not consistent in the broad sense with statements made in the other medical evidence tendered. The medical evidence was provided only in written form and none of the doctors appeared before the judge to give evidence. Evidence given by other medical witnesses, for example, the psychiatrist Dr Karl Koller and Dr Wright, are not to the same effect or the same purport as that which Mr Sutherland submitted appears from the report of Dr Ali. The learned judge had this material before him. It does not appear, I think, that it was ever put to the plaintiff in effect that what he was saying as to his condition at relevant times was not true. It does not appear to have been put to him, at least 4 UNREPORTED JUDGMENTS directly and with any force, that what he was saying was not accurate because, as I think is now suggested, he had said different things to Dr Ali at or about the time of Dr Ali's report, namely 27 April 1988. In these circumstances, I have significant doubt whether, in accordance with the views which have been expressed by the High Court in such circumstances, it is open to an appellant to make the kind of submission that has here been made. But however this be, in my opinion the material in Dr Ali's report does not justify this Court in interfering with the decision of the learned judge. The learned judge had the plaintiff in evidence before him for some time and obviously took the opinion that his evidence was reliable. It is clear that his Honour accepted the plaintiff as a witness of truth. The principles that apply in this regard have recently been re-stated by McHugh JA in a judgment concurred in by the other judges of the High Court in Abalos v Australian Postal Commission 65 ALJR 11 at 16. It is not necessary to re-state them. In the circumstances, I think that this Court is not entitled on appeal to come to the conclusion, in relation to the plaintiffs credibility, that he misstated his condition insofar as it was different from what he had said to Dr Ali. It was put by Mr Sutherland, forcefully and at length, that it was the duty of his Honour to resolve in detail what he described as a contest between what the plaintiff had said and what Dr Ali had said. I do not think it is necessary for a judge, at least in the factual context of the present case, to follow each possible conflict and deal with it in detail. It is obvious that the tenor of the evidence appearing from the medical reports favoured his condition as it has beendescribed by the plaintiff. If it was desired to raise the suggested conflict between the plaintiff's evidence and, as I think it is, the evidence or opinions of the other doctors and that of Dr Ali, then the matter should have been put in detail to the plaintiff in cross-examination so that the court would have the benefit of what the plaintiff would say in relation to that, in particular what he would have said as to what was meant by the statement suggested to be made by Dr Ali in the passage to which I have referred. As I have said that was not done. In addition, I have some doubts whether, properly understood, there is really a fundamental conflict between the matters that are recorded by Dr Ali in the relevant part of his report and the picture as given by the plaintiff and (as I think is) by some at least of the other doctors. If the matter were to be reconsidered by this Court, I think that its conclusion would accord with that arrived atby his Honour Ward DCJ. In the circumstances I see no reason to interfere with this aspect of the learned judge's finding. The second submission was directed to, as it has been described in the amended notice of appeal, the assessment of the future vicissitudes affecting the plaintiffs position. The plaintiff had, prior to the accident, been suffering from a dermatitis condition. This condition to some extent restricted the work which it was advisable that the plaintiff should do. He had previously been affected by paint used in working on an oil rig and the suggestion was that this condition rendered him liable to the outbreak of skin conditions if he were working in the paint industry and used an unacceptable type of material. The plaintiff was consicious of this and he referred in his evidence to the possibility of varying his work within the industry so as to avoid this particular condition. But he was adamant that there never had been any intention that he would retire before his normal time. URE GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v ALLEN (Samuel JA) If the plaintiff was therefore affected by other than the ordinary vicissitudes it was, as I think Mr Sutherland referred to at one stage in his argument, in respect of the possible loss of income involved in changing, if he chose to change, from one part of the industry to another. The learned judge adopted a discount for vicissitudes something in excess of the percentage ordinarily adopted. He took twenty per cent rather than the usual fifteen per cent. It was suggested that, because there was a reference within the medical reports to this particular matter, the discount for vicissitudes should have been greater. It is, I think, sufficient to say these were matters assessed by the learned judge and his Honour chose twenty percent. I do not think that, for example, a discount of thirty per cent could be justified by any reason more adequate than those that no doubt motivated his Honour in choosing twenty per cent. I do not think there is any sufficient reason for coming to a different conclusion to that adopted by his Honour. In the circumstances, therefore, I do not think this ground of appeal has been made out. For these reasons in my opinion the appeal fails. I propose that the appeal be dismissed. Gleeson CJ I agree. Samuels JA I agree. For my own paart, I would be content to say that I can seeno error in the assessment which would authorise the intervention of this Court. Appeal dismissed with costs. Counsel for the Appellant: RF SUTHERLAND Counsel for the Respondent: LD SERISIER Solicitors for the Appellant: MS AUDREY LEE, HURSTVILLE Solicitors for the Respondent: POPPERT and NAIR