GOVERNMENT INSURANCE OFFICE OF NSW v CAVANAGH SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS, MEAGHER JJA and Hope AJA 6 May 1991, 6 May 1991 [1991] NSWCA 108 Damages — bodily injuries suffered in motor vehicle accident quantum — damages for future economic loss and general damages no question of principle — appeal dismissed. Hope AJA This is an appeal from the decision of his Honour Judge Gibson given on 25 August 1989 awarding the plaintiff the sum of $304,000 in respect of injuries which she suffered as a result of a motor vehicle accident on 7 October 1984. The sum of $304,000 included the sums of $185,879 for future economic loss and $75,000 for general damages. It appears that his Honour did not allow any interest on past general damages. The appeal by the defendant challenges as excessive these amounts for future economic loss and general damages. The plaintiff was twenty-three years of age at the time of the accident and twenty-eight years at the time of trial, and she had married very shortly before the accident. The injuries which she suffered were described by his Honour as headaches and stiffness in the shoulder and neck pain. These were the result apparently of a soft tissue whiplash type injury to the neck and cervical spine. Where an injury is ligamentous in nature it commonly improves within a few years at the latest. However, contrary to expectation the plaintiffs condition did not improve. It was critical to the conclusions of the learned trial judge that he entirely accepted the plaintiff and her evidence. What he said was that the plaintiff "impressed me as a witness of truth and a witness of accuracy and reliability. I accept her evidence as to her present symptoms and the effect on her." She was examined by four doctors who gave evidence and by other doctors who made reports. Of the four doctors who gave evidence three agreed that she was not malingering and that she was a person who truthfully recounted what her problems were. The fourth doctor, Dr Hodgkinson, did not expressly reject her but as his Honour pointed out it appears to be implicit in his conclusion that he did not accept her, or at any rate, accept her entirely. However, there is no challenge to the conclusion of his Honour nor could there be. The plaintiff did not improve. She had difficulty coping at work, and experienced pain in the neck and shoulder area, and headaches and restriction of movement of the neck. Car travel exacerbated the pain and because the pain and headaches increased she gradually missed more work and was transferred to restricted duties in the police force of which she was a member. In September 1985 she was placed on permanent sick report and ultimately on 9 September 1987 she was pensioned out and retired as permanently unfit for duty. At the time of the trial, the learned judge concluded, her problems had not proceeded as expected by the doctors, that is, to improve, and instead of getting better they got worse until the position was reached that she could not work and could not carry out housework other than the most minor chores. She could not, because of the neck pain and back, the headaches and problems overall do any full-time work 2 UNREPORTED JUDGMENTS at all. His Honour concluded that the plaintiff would remain unemployable and that her enjoyment of life would be seriously curtailed. At an early age she achieved distinction as an athlete representing her district at hockey, had been a trophy-winning golfer, had won medals at the New South Wales Police Games and had been selected to go, and did go, with the Australian Police Olympic team to the United States. She is no longer able to enjoy any sport. The learned trial judge accepted the evidence of Dr Opie as opposed on the one hand to Doctors Yeo and Goulston and on the other hand to Dr Hodgkinson. Dr Hodgkinson's conclusion was that she should have had a fusion operation, but this view was rejected by each of the other three doctors to whom I have referred. In reaching a conclusion about her Dr Hodgkinson said "Because she had not proceeded to have any further operative treatment, well, that is her decision. I did not fell in the long term that she had a continuing disability of significance. This is the only interpretation I can make of this sort of thing because people are prepared to have major surgery and major diagnostic tests when the quality of life is disturbed sufficiently." He had earlier said that he had suggested a fusion operation but left it to her to make a decision. Dr Hodgkinson's view was not only different to that of the other three medical practitioners, but it was also dependent upon a rejection of the evidence given by the plaintiff as to her condition. It is clear that his Honour, having reached his conclusion as to the credibility of the plaintiff, was fully justified in rejecting Dr Hodgkinson's views and indeed it is difficult to see how he could have done otherwise. It is submitted for the defendant that the learned trial judge accepted the evidence of Dr Yeo and Dr Goulston as well as that of Dr Opie. However in the passage which they rely upon for that result, it appears to me clear that the learned trial judge was referring to their acceptance of the plaintiff as being truthful. Having expressed this view his Honour immediately went on to say that he had considered the view of Dr Yeo but that he had finally accepted the views of Dr Opie concerning the plaintiff. Although Dr Opie did not rule out entirely the possibility of the plaintiff improving, he regarded it as quite remote. In his evidence in chief he said that any worthwhile recovery as far as the neck was concerned was bleak, that she was virtually unemployable, that he did not think that she could do any clerical work, and that it was unlikely that she would ever run or play any form of active sport. In cross-examination he said that most of the pain that she was getting was from ligamentous tearing and also from the joint capsule tearing and also from disruption of the small joints in the neck. They were matters which would not appear on x-rays and similar tests. Dealing with the future Dr Opie said: "Q. Those injuries could resolve within a few years? A. They could but in my opinion it is unlikely. Q. We are within the realms there of complete uncertainty, are we not? A. Not really. If she were going to show any improvement in the future, any worthwhile improvement in the future, I would reasonably have expected her to have shown signs of that occurring by now but this has not happened. Q. By extrapolation you are saying; no reasonable improvement in five years, extrapolate from that there will not be reasonable improvement for possibly another five years or further. A. Correct. URJ GOVERNMENT INSURANCE OFFICE OF NSW v CAVANAGH (Hope AJA) 3 Q. Again, it is of the most general kind of measurement? A. That's true; it's only based on other observations of the other people. Q. I mean no disrespect, could you will be wrong. It could resolve of itself within the year? A. Could be wrong, yes." Dr Yeo took a view that there was a considerable prospect of the plaintiff recovering, indeed a good prospect but at the same time he agreed that there were cases which could not be explained where there was no improvement. The first ground of appeal is that his Honour erred in finding on the evidence of Dr Opie that it was more probable than not that the plaintiff would remain in the future unemployable when Dr Opie's evidence was totally against the weight of the other evidence presented in the case, including the evidence of Dr Yeo, Dr Goulston and Dr Hodgkinson. In my opinion that ground cannot be made out. The learned trial judge accepted Dr Opie and he was quite entitled to do so, and no challenge can be made to this conclusion. The second part of this ground was that his Honour erred in assessing future economic loss in that he accepted the views of Dr Opie as to the plaintiffs future unemployability when those views were so speculative as to be non-expert and were not based on objective evidence. It is true to a large extent that Dr Opie, as indeed was the case in respect of other doctors, had to rely upon what the plaintiff told him. However, in relation to the question of future employability in the passage which I have already quoted, Dr Opie was challenged in relation to his views as to her future employability and it was put to him that what he had said was the most general kind of observation. Dr Opie replied that that was true but it was based on observations of other people. In my opinion it is not correct to say that Dr Opie's evidence was non-expert and the learned trial judge was quite entitled to rely upon it. It has been put for the defendant that even accepting the conclusions which his Honour arrived at in relation to future unemployability, he should have given some effect to the views of Dr Yeo in particular. I would interpolate that Dr Goulston did not express any significant views on the matter and in particular no views which would lead one to disagree with Dr Opie. However in his reasons the learned trial judge did have regard to what he described as the greater possibility than normal that the plaintiff would recover to some extent and accordingly he deducted twenty per cent instead of the normal fifteen per cent in arriving at a figure for future economic loss. It accordingly appears that his Honour had regard to the possibility that Dr Yeo referred to and the only question is whether the additional five per cent discount which he made is something which this court should interfere with. In my opinion, having regard to the evidence which his Honour accepted, one cannot conclude that he was in error in allowing only an extra five per cent discount in respect of the possibility of the plaintiff's recovery. The second ground of appeal is in respect of general damages which it is alleged are excessive and disproportionate. I have related shortly the plaintiff's description of the disabilities she suffered and will continue to suffer. She had at the time of trial about another fifty years of life ahead of her and the prospect of her continuing to suffer the matters which she described at the trial were considerable indeed. $75,000 is high and it may be at the top of the range. However, in my opinion, it is not so high or disproportionate that this court: should interfere with it. I would accordingly dismiss the appeal with costs. 4 UNREPORTED JUDGMENTS Samuels JA I agree. I think the court should be grateful to Mr Christie of counsel for the appellant for his candour and appreciation of counsel's proper duties to the court in explicitly acknowledging the difficulties that lie in his client's way. For my part I can perceive no error in what seems to me to be a singularly careful and complete judgment. The most that could possibly be said is that the amount awarded for pain and suffering and the like is at the top of the range; but it is certainly not outside the limits of a proper discretion. The appeal must be dismissed with costs. Meagher JA I agree with both my brothers. The order of the court therefore is that the appeal should be dismissed with costs. Counsel for the Appellant: T CHRISTIE Counsel for the Respondent: JL GLISSAN QC, Fv FLETCHER Solicitors for the Appellant: G MEADOWS Solicitors for the Respondent: TAYLOR and SCOTT