GREEN vy GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, PRIESTLEY and SHELLER JJA 30 March 1992, 7 April 1992 [1992] NSWCA 97 DAMAGES — The appellant was injured in a motor vehicle accident and recovered damages. He appealed against the quantum of damages on two grounds: (i) that the trial judge failed to give sufficient weight to what the appellant's earning capacity would have been but for the injuries; (ii) that the trial judge in assessing damages erred in law by taking into account an invalid pension the appellant had received. Held The appellant had failed to show any ground upon which the Court could interfere with the judgment of the trial judge. Appeal dismissed with costs. Motor Vehicles (Third Party) Insurance Act Social Security Act 1947 Redding v Lee (1983) 151 CLR 117 Mahoney JA I agree with the judgment of Sheller JA. Priestley JA I agree with Sheller JA. Sheller JA This is an appeal by a plaintiff from a verdict and judgment given by Judge Nield in the District Court at Dubbo on 8 November 1989. The total amount of the verdict was $122,933. Of this $20,000 was damages for interference with wage earning capacity from 21 January 1985 to the date of the judgment together with interest thereon for 4 years 10 months at an average rate of 7.5%, totalling $7,245, and $37,757 damages for future interference with wage earning capacity. As it was argued before us the plaintiff's appeal was limited to what was said to be the inadequacy of the damages awarded under these heads. This was further distilled in argument to two issues; first, that his Honour had not given sufficient weight to what the appellant's earning capacity would have been if he had not suffered the injuries, the subject of the proceedings and, second, that his Honour erred in law when assessing the amount for interference with wage earning capacity prior to judgment in taking into account an invalid pension which the plaintiff had been receiving since some date in 1985. The plaintiff sued the defendant Government Insurance Office, as the authorised insurer under the provisions of the Motor Vehicles (Third Party) Insurance Act in two separate actions to recover damages as compensation for injuries he claimed to have suffered on 21 January 1985 and on 17 July 1985 and for consequential disabilities, each claim arising from a motor vehicle collision. In both actions the defendant admitted its liability and the actions were heard together for the purpose of assessing damages. In a careful judgment his Honour set out the background history of the plaintiff. It is unnecessary for the purpose of determining the issues in the appeal to repeat all this material. It is enough to extract the matters relevant to the points in issue before us. The plaintiff was born on 19 December 1940. After he left school in 1954 he worked as a general rouseabout and then shearer until 1969, 2 UNREPORTED JUDGMENTS when he was injured in a motor vehicle. As a result of the injuries he suffered in that accident he was in 1974 advised to and did undergo lumbar spinal fusion. In 1975 he resumed shearing and continued with that occupation until 1980 when, while "tossing a sheep" he injured the muscles in his right arm in a way which required surgery. From that injury he made a complete recovery. During a period from 1972 he was engaged in property dealing. He purchased houses, renovated them and let them. He also purchased a corner shop at Tamworth. On 6 November 1981 he was injured by a gunshot wound to a lung, after which he left Tamworth and went to Ballina where he trained horses. In 1981 he left Ballina and went to Grafton for three months. In September 1982 he left Grafton and returned to Tamworth intending to renovate the corner shop and to conduct a business there in partnership with his wife, whom he had married while at Ballina. The evidence shows that from some time in 1980 until early 1984 he had given up shearing in favour of other occupations. However, he says, and his Honour accepted this, that with the birth of his daughter on 1 February 1984 at a time when he was working fifteen hours a day seven days a week in the shop and producing little income he realised he could better employ his time by doing that which he knew best, namely shearing. To this end his wife's sister joined his wife in working in the corner shop and he returned to shearing. His Honour found that by August 1984 and notwithstanding his right arm injury of 1980 and his lower back injury of 1969, the plaintiff was still a physically capable and competent shearer. In November 1984 on the advice, apparently of his lawyers and accountant, he sold all his houses and his shop in Tamworth and moved to Dubbo, where he arrived on about Christmas Day 1984. His Honour found that he intended to make Dubbo his home and he intended to continue his occupation as a shearer. Shortly after his arrival in Dubbo he was involved in the first of the two motor vehicle collisions, with which these proceedings are concerned, on 21 January 1985. His Honour concluded that of the two the injury suffered on 21 January 1985 was relatively mild and that suffered on 17 July 1985 was relatively major. On 4 May 1985 he commenced four weeks shearing for a Mr Edwards. This confirmed to his Honour the plaintiff's intention to resume shearing as his occupation on his setting up house in Dubbo and confirmed his physical capacity to return to that occupation on setting up house in Dubbo. There is no doubt that the plaintiff suffered significant injury in the first accident. Dr Rusden, who saw him a few days thereafter, found him on examination to have muscle spasm limitation of movement of neck consistent with a ligamentous injury of the cervical spine. Dr Sahukar, who saw him, for the first time, on 20 June 1985, described him, as result of the accident on 21 January 1985, as having sustained a soft tissue injury to the inter spinous and posterior vertebral ligaments of the cervical spine from C5 to D1. "As a result of the earlier arthritic changes his present symptoms have been aggravated following this accident. At the present moment it is difficult to give a definite prognosis. I have advised Mr Green to have a course of physiotherapy to his neck and only time will tell whether his present symptoms will improve." The second accident on 17 July 1985 resulted in what his Honour described as an aggravation and intensification of the previously suffered injury. After the motor vehicle accident of 17 July 1985 the plaintiff again consulted Dr Sahukar on 25 July 1985. He recorded in relation to his examination that "cervical spine movements of the neck are limited, rotation movements, flexion \REEN v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Sheller JAB and extension is also limited but no different from my medical examination done on 20 June 1985 prior to the accident". In his report of 8 August 1985 Dr Sahukar went on to say: "As far as his back is concerned Mr Green had a spinal fusion done in Tamworth by Dr John Davies in 1974. The operation has not been extremely successful. Mr Green returned back to his shearing job following the operation but he was in a fair amount of pain and discomfort and he had to carry on shearing to earn a living and now he is in more strife as far as his back is concerned because he constantly gets this back ache with the pain referred down his right leg. Though he is not working at the moment he has got symptoms in his back so I recommended Mr Green to have a firm corset and review the situation whether there may be come indication to do another operation and strengthen the fusion which has become unstable. As far as the road traffic injury is concerned that occurred on 17 July 1985 Mr Green has got no major disability in his back and in his neck, only time will tell." This report of Dr Sahukar was tendered by the plaintiff as part of his case. Dr Sahukar was not called to give oral evidence and therefore the opportunity was not taken to explain anything he said in his reports. Having referred to this report of Dr Sahukar his Honour said: "This opinion of Dr Sahukar insofar as the plaintiff's lower back condition was then concerned I accept. I think that, notwithstanding that the plaintiff engaged upon shearing activities, and thereby showed both a physical capacity and a determination to engage upon those activities, his pre-existing lower back disability was producing for him pain and discomfort which if he had continued as a shearer would have produced such pain and discomfort that he would have had to cease those activities. This is confirmed to my mind by the opinion to which I will refer in a moment of Dr Palmer." Dr Palmer's report, which is dated 31 January 1986 and was tendered by the defendant, as I read it, is speaking of the situation in early 1986 when the plaintiff, as his Honour noted, was making an application for an invalid pension. Speaking at that time Dr Palmer said: "He gives the history of back injury as the result of a motor vehicle accident in 1969. Following this he had a spinal fusion which, apparently, a recent scan showed to have been only partially successful. He still experiences significant symptoms from his back following a diverse form of activities, such as working on his 25 acre block, driving a car for a prolonged period and even from the slight back flexion required for washing up...... My feeling was that, unfortunately, Mr Green has symptoms which are really quite disabling within even a relatively sedentary type of lifestyle and I feel that it is unlikely that he would be able to embark on any full time employment with any degree of success." The opinion expressed in the last of these paragraphs by Dr Palmer was supported by a number of other doctors to whose reports his Honour referred namely; - Dr Bentivoglio, particularly in his reports of 29 October 1986 and 13 October 1988, but speaking in both cases with respect to a cervical fusion which the plaintiff had undergone in April 1987, - Dr Yeo in a report of 4 February 1988 who seems to be talking in terms of the cervical injury when he says "his movements are not improving and I am now of the opinion that he will be unable to resume his previous full time employment as a shearer", 4 UNREPORTED JUDGMENTS - Dr Seaton who said on 18 May 1989 that the plaintiff would never be able to return to shearing, an opinion expressed entirely with respect to his neck injury, and - Dr North, who again when he reported on 24 May 1989 was expressing his opinion with respect to disabling pain in his neck and shoulders. His Honour expressly accepted the opinions of Drs Bentivoglio and Yeo. His Honour said that he accepted Dr Palmer's opinion insofar as it related to the plaintiff's lower back disability. His Honour then went on to state: "The result of it all is that the plaintiff suffered as a result of one or other or both motor vehicles collisions a severe injury to his cervical spine or to the discs of that spine which injury necessitated cervical surgery and has left the plaintiff with a scar following the surgery, of which the plaintiff did not mention, and I assume therefore does not trouble him, a slightly stiffened neck which because it is stiff and has lost some of its elasticity, a painful neck, a restricted neck insofar as movements are concerned and an inability to now engage for once and for all in heavy manual activities. There is nothing in the plaintiff's evidence which is inconsistent with either probability consistency or logic or with any opinion expressed by the medical practitioners. I accept what he has said although, as I have said already, insofar as his ability to continue employment as a shearer is concerned, I doubt that he would have been able to continue that for very long after his having set up house in Dubbo. I think that had he engaged upon shearing as he intended to and as he believed he could, his lower back disability would have produced such pain and discomfort for him that to continue shearing would have been out of the question. That does not mean that I reject what he says, it only means that I think he looked upon his capacity as being greater than it in fact medically was at the time. In other respects, I accept everything that he has said." The plaintiff challenges this on this appeal. In particular Mr Trew QC, who appeared for him, drew attention to the plaintiff's evidence under cross examination where he disagreed with the proposition that after 1980 and up until the time of trial the reason he had done little or no shearing was because his back was sore and caused him problems when he tried to shear. Further the plaintiff argues that his Honour misunderstood the report of Dr Sahukar. Mr Mayell, who appeared for the respondent, fairly conceded that the only medical evidence supporting the conclusion that the 1969 injury and the unsuccessful lumbar fusion operation in 1974 would have led by 1985 to the plaintiff not being able to continue his employment as a shearer for very long was the opinion of Dr Sahukar. Having carefully read Dr Sahukar's report I think his Honour was entitled to come to the conclusion that he did. Moreover I think this has to be looked at in the context that Dr Sahukar was not called to explain his report, and of the fact that the evidence led to indicate that the plaintiff was engaged in any shearing work after 1980 was, as his Honour recognised, meagre. The plaintiff's income tax returns show his gross income from shearing was limited to $709 in December 1984 January 1985, $281 in August 1984 and $2,214 when he worked after the first accident in April/May 1985. I think his Honour was entitled to entertain doubt as to whether the plaintiff would have been able to continue for very long in employment as a shearer after he set up house in Dubbo in late 1984. In my opinion the appellant fails on this issue. \GREEN v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Sheller JAB In Redding v Lee (1983) 151 CLR 117 the High Court held that in the assessment of damages to be awarded in an action for personal injuries caused by negligence, payments, actual and prospective, of an invalid pension granted for permanent incapacity to the injured plaintiff pursuant to the Social Security Act 1947 should be disregarded. Since that case the legislation has been amended but the parties agreed that as at the date of his Honour's judgment the law was as is stated in Redding v Lee. In the course of discussion between counsel and his Honour after the conclusion of submissions it seems to have been accepted that the invalid pension was non-refundable and accordingly had to be taken into account in assessing the amount of damages. If his Honour approached the assessment of damages on this basis he was, with respect, in error. Redding v Lee is authority for the proposition that the intention of the Social Security Act 1947 as it then stood was that the grant of an invalid pension to an injured person was for the benefit of that person notwithstanding any common law claim for damages which he might have in respect of his injuries and that the invalid pension payments were not to operate in relief of the liability of any person liable to pay those damages; see per Mason and Dawson JJ at 144. But in order to succeed on this branch of his argument the appellant had to show that his Honour in his judgment did take the invalid pension into account, and presumably, reduced the amount of damages under the heading for interference with wage earning capacity from 21 January 1985 to the date of judgment accordingly. I have carefully read his Honour's judgment. As was pointed out to us, his Honour recognised that the invalid pension was not refundable from the verdict as compared with what he described as sickness benefits. His Honour said that he would have expected, if the case had been properly prepared, that he would have been given chapter and verse of the plaintiff's unemployment and sickness benefits, his invalid pension and his income from his employment. The plaintiff argued that if the invalid pension had been disregarded by his Honour the production of such material about it would not have been necessary. Further it is pointed out that the lump sum of $20,000 for a period of 249 weeks is a weekly amount of $80 as compared with the future earning capacity which his Honour assessed as equal to $100 per week. It was agreed between the parties that the plaintiff's pension entitlement was $48 per week. Nowhere in his judgment did his Honour say that he was taking this amount or indeed any amount for pension into account in assessing damages. The difference between $80 and $100 per week is not explained by this amount. His Honour was no doubt aware of the High Court's decision in Redding v Lee. Some mention appears to have been made of the case during argument. In my opinion there is nothing in his Honour's judgment which would enable us to conclude that he made the error of law complained of and for this reason I consider the argument fails. In my opinion the appeal should be dismissed with costs. ORDERS Appeal dismissed with costs. Counsel: Appellant: J L TREW QC/G H JOHNSON Respondent: N R MAYELL 6 UNREPORTED JUDGMENTS Solicitors: Appellant: CARROLL and O'DEA 5 Respondent: SOLICITOR FOR GOVERNMENT INSURANCE OFFICE