LAZAR y GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CRIPPS, PRIESTLEY and CLARKE JJA 15 September 1992, 20 November 1992 [1992] NSWCA 130 This was an appeal on the trial judge's assessment of damages arising from a motor vehicle accident on 25 December 1986 in which the appellant was injured. Held: The trial judge did not err in not awarding agreed out-of-pocket expenses. The trial judge did err in failing to award interest on past economic loss but that alone was no reason to reassess the whole claim as it is a severable item and (although not fully argued) could be fixed under the slip rule. District Court Act 1973 s83A District Court Rules Pt17 R10 Abalos v Australian Postal Commission (1990) 171 CLR 167 SS Honestroem v SS Sagaporack [1927] AC 37 Beneke v Franklin [1975] 1 NSWLR 571 L Shaddock and Associates Pty Ltd v The Council of the City of Parramatta (1982) 151 CLR 590 Brew v Whitlock (No 3) [1986] VR 504 Whitlock v Brew (1968) 118 CLR 445 Cripps JA This is an appeal from the decision of Conomos DCJ on 6 March 1990 entering judgment for the respondent in the sum of $9948.27. The appellant was injured in a motor vehicle accident on 24 December 1986. He sued the respondent for damages. The issues before Conomos DCJ were liability and damages. Conomos DCJ found for the appellant on liability. There is no appeal against that finding. The appeal is limited to the learned judge's assessment of damages. The award of damages was made up as follows: General damages $6,000.00 Out-of-pocket expenses 841.27 Past wage loss 3,107.00 $9,948.27 The amended grounds of appeal are as follows. 1. The award of $6,000 for general damages for pain and suffering and loss of amenities was inadequate and below the range of sound judicial discretion. 2. His Honour's assessment of damages failed to take account of the injury suffered by the plaintiff to his ribs. 3. His Honour failed to make any proper allowance for damages in respect of past or future loss of earning capacity. 4. His Honour's assessment of damages and allowances formed only a short period of past loss of earnings was against the evidence and the weight of the evidence. 5. His Honour erred in fact and in law in failing to award the plaintiff the agreed out-of-pocket expenses. 2 UNREPORTED JUDGMENTS 6. His Honour's allowance of the out-of-pocket expenses agreed to by the parties without notifying the appellant of his intention to do so or without inviting any submissions in relation thereto was a denial of natural justice. 7. His Honour failed to make any proper allowance for interest in respect of past economic loss. The grounds | - 6 were the grounds originally filed. Ground 7 was added when the matter came on for hearing. The respondent does not object to it being included and, as I understand it, makes no submission otherwise than that it was apparently an oversight on the part of the trial judge not to allow interest in respect of past economic loss. Ground 6 has been abandoned for the very good reason, I assume, that when the trial judge was told about the agreement concerning out-of-pocket expenses, it was expressly stated by counsel appearing for the respondent that although it was not disputed that the expenses were incurred by the plaintiff, it was not admitted that the expenses were incurred as a result of the injury suffered by the plaintiff on 24 December 1986. Ground 5 was amended during the hearing to delete the words "and in law". Before Conomos DCJ, the appellant claimed that by reason of the accident, he suffered and will continue to suffer considerable pain and suffering and that his capacity to work has been and will remain seriously diminished. The respondent, apart from denying that the driver of its insured vehicle was negligent and alleging that the respondent was guilty of contributory negligence, maintained that the effects of the accident were not as serious as the appellant alleged. It alleged that the effects of the accident had worn off in a matter of months. It maintained in this Court that the award of the learned trial judge, although low, was within the range open to him. The findings of the learned trial judge make it plain that he did not accept the accuracy of the evidence given in court by the plaintiff. It is equally obvious that the trial judge was unimpressed by the appellant's demeanour particularly when he repeatedly claimed not to be able to remember events that were put to him as having happened as a consequence of an earlier injury in March 1980 and which, if true, would have affected the claim he was making in court. There is no dispute that as a result of the accident the plaintiff suffered injuries to his nose, tongue, right knee cap, chest and abdomen. He was taken by ambulance to the Prince of Wales Hospital where he remained an in-patient for four days. X-rays taken at the hospital disclosed no abnormalities. His right knee was sutured and a urine analysis showed some haematuria which had resolved by the time he was discharged. On 29 December 1986 he attended his local general practitioner, Dr Kalmath. He complained that he still had pain in the chest resulting in restriction of movement and painful breathing and that his neck, mid back, low back and right and left sacro iliac joints were painful. Dr Kalmath referred him to Dr Williams to be X-rayed. Dr Williams reported that he had suffered "typical seat belt fractures of the anterior end of the right and left lower ribs". He said that there fractures involving the Sth, 6th, 7th, 8th and, probably, 9th ribs on the left side and fractures of the 6th, 7th, 8th and probably 9th ribs on the left side. In April 1987, Dr Kalmath was of the opinion that he had not recovered from the accident and was then unfit "even for light duty jobs". Dr Kalmath referred the appellant to Dr Guirgis, an orthopaedic surgeon who had treated him for a lower back injury following a motor vehicle accident in 1980 and which had resulted in the appellant suffering continuing pain in the lower back and right buttock. In early 1987, the appellant gave Dr Guirgis a history of continuing pain in the back and tenderness in the neck. Dr Guirgis saw WAZAR v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Cripps JAB the appellant again in August and September 1987. He recorded that he thought that the appellant had sustained musculo ligamentous injury to the cervical spine which could have been the result of the car accident. He also thought he had sustained a musculo ligamentous injury to the lumbar spine which again could have been the result of the car accident. He thought the injury had "unfortunately triggered the symptoms of and/or aggravated the effects of pre-existing mechanical derangement due to the accident in 1980 rendering symptomatic and thus leading to continuing disability. At the bottom of his report, he also wrote: "He also sustained a fracture of the anterior end of right and left ribs that healed completely leaving no residual disability or incapacitation." Throughout the period between the accident and the date of hearing the appellant continued to complain of pain in the neck, the back and the chest to his local practitioner and also of depression. He saw a number of medical practitioners and to each he complained of pain in the cervical spine, the back and the chest. He was treated by a psychiatrist for an "adjustment disorder" which, while not itself incapacitating him, tended, she thought, to decrease his fitness for work and to aggravate his feelings of pain. The appellant was born in Iraq on 1 July 1950. He came to Australia in 1971. There was not a great deal of investigation at the hearing of his work history since he came to Australia. He said he had been employed during the 70s. In March 1980, he was injured in a push bike accident while travelling to (or from) work. He injured his back and did not work for about four years. He finally obtained employment as a handyman at the Barker Lodge Motel where he worked continuously for a period of between 18 months and two years prior to the accident on 24 December 1986. During this time, according to the evidence of his employer, which was not challenged, he worked continuously and the work was sometimes heavy. He returned to Barker Lodge some time early in 1987 but he was not able to be employed. He says he has looked for work since but has not been able to find any. T have not detailed all the medical evidence. It is sufficient, I think, to note that although clinical (in the sense of objective) evidence of continuing disability was not observable, the medical practitioners whose certificates and reports were tendered on behalf of the plaintiff, were of the opinion that his complaints were consistent with the injury described by him. According to Dr Kalmath, as at 20 January 1990 his low back condition, his neck and chest pain was still troubling him and he thought that his work capacity had been "considerably reduced to such an extent that he is unable to earn even a few dollars through some odd light duty jobs on a part-time basis". He considered that the appellant was "practically unemployable". Dr Kalmath's conclusions were not wholly shared by other medical practitioners who saw the appellant either to treat him or to examine him for the purposes of the litigation. For example, Dr Guirgis, who last saw him, apparently, in November 1988, said that he thought he was unfit for duties involving stress to his spine and that he suffered a "post traumatic syndrome" (headaches, dizziness and insomnia)". He thought "the prognosis in such cases is guarded". Dr Rasanayakam, an orthopaedic surgeon, who saw him on 31 October 1988, thought that the appellant had been totally incapacitated for work by reason of the injuries for a period of one year and that as at the date of examination he was partially incapacitated. He thought that in view of his "post traumatic anxiety state" he might remain partially incapacitated for "two to three years". 4 UNREPORTED JUDGMENTS The medical practitioners, who examined him on behalf of the defendant, took a much more robust view. One of them, Dr Wearne, said that at the time he saw him on 15 January 1990, the appellant had fully recovered from his fractured ribs and soft tissue injuries and that the complaints then being made "were the result of conscious fabrication". He said he found no neurological abnormalities, no wasting and no objective evidence of any skeletal problems. He was also influenced, apparently, by the circumstance that during the examination the appellant had two paroxysms of coughing with no evidence of distress. Dr Lawson saw him on 15 August 1988. He was of the opinion that notwithstanding the plaintiffs continuing complaints of pain and discomfort that he had made a "complete and uneventful recovery from his injuries". He was seen by Dr Bentivoglio on 18 January 1988. Dr Bentivoglio thought that the appellant had sustained a musculo ligamentous strain of the cervical lumbar spine. He viewed X-rays of the chest, thoracic spine, lower back and neck and thought they were within normal limits for a man of his age. He was of the opinion in January 1988 that the appellant should have recovered from his injuries within "three to six months" from the accident date and that, in any event, he would not be left with any long term disability. He thought he required no further treatment and that he would not resume work until the present litigation was finalised. His concluding paragraph was: "T consider he has been capable of doing his full pre-injury duties for at least the last 6 months (he saw him in 1988). His complaints far outweigh any evidence of ongoing physical disability." In his judgment, Conomos DCJ set out the plaintiff's complaints and work history. As I have said, it was apparent from the transcript that the trial judge was not impressed with the manner in which the appellant gave evidence concerning the condition of his back prior to the accident. He was asked a number of questions concerning complaints he had made to Dr Kalmath in 1983 with respect to his back and to the fact that during that time he complained of headaches, a stiff neck and depression. He said he could not remember making the complaints. The tenor of his evidence was that he could not remember any of the complaints he had made to Dr Kalmath in 1983 and 1984. It was put to him in terms that shortly before the accident he had been to Dr Kalmath complaining of lower back pain and pain in the right hip and the left hip. Again, he said he could not remember. The way the plaintiff answered these questions did not impress the trial judge. Bearing in mind that this Court must pay regard to the advantage of the trial judge in assessing the credit and reliability of witnesses, it is not unimportant to note that at the time the plaintiff was cross examined, the learned trial judge did not have the medical reports in front of him. The unfavourable impression was created quite independently of any misreading of the medical reports if that is what happened. To the forefront of the appellant's argument is the allegation that the learned trial judge failed to have regard to the circumstance that the appellant's ribs were fractured in the accident. It was said that this matter was overlooked with the result that not only was the appellant denied compensation for his chest injuries but that that omission tainted the learned trial judge's appreciation of the appellant's case. The following is the relevant part of the judgment: "At present he states he suffers pain in the neck and lower back and his chest and he maintained that he is very depressed. He is depressed because of his present situation. WAZAR v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Cripps JAB During this time he has completed a security officer's course and Bar Attendant's course. At present he attends a TAFE College seeking to improve his English. He agreed in cross examination that he had seen a psychiatrist before this accident in 1986 and from 1986 until some months before the accident on 24 December 1986 he had consulted his general practitioner, Dr Kalmath, in relation to headaches, neck pains, nervousness, depression, tension and also in relation to pains in his lower back. Ihave examined the document sent to the court by Dr Kalmath which became Exhibit '2' and it does seem that it is fair to say that the plaintiff was a constant attender at Dr Kalmath's surgery complaining of a variety of symptoms, but in the main about symptoms and disabilities of which he claims at this very moment. It is obvious, in fact plain to demonstration, if Dr Kalmath's notes are correct and there is no reason to doubt them, that this plaintiff had real problems with his spine, that is his upper, mid and lower spine, well before the accident of 24 December 1986." I do not accept that the plaintiff has any disabilities now which relate to the motor vehicle accident of 24 December 1986. My assessment of the histories and the medical reports tendered on behalf of the plaintiff and the defendant is that from a period of some three months after this accident the plaintiff's condition had returned to the pre-24 December 1986 situation. I must say I am disappointed for the plaintiff that he has not re-entered the work force. He is a very impressive man and it is a pity indeed that he has wasted these years. I cannot say that he has not worked because he wished to swell his damages in this court case; I am suspicious of his motive in that regard. However, whatever his motive may have been, I do not intent to compensate him for any loss of wages other than for an immediate period of three months, that is thirteen weeks, after this accident. I intend to compensate him by way of an award of general damages to cover a very serious motor car accident in which he was ejected from his motor vehicle, as a result of which he suffered obviously some trauma to his nose and tongue and no doubt a very bad shaking up." As can be seen, Conomos DCJ did mention that the plaintiff was complaining about the pain in his chest. It is true he did not mention that the plaintiffs ribs were fractured in the accident. However, there was medical evidence, particularly that of Dr Guirgis, from which it was open to the learned trial judge to conclude that the injuries to the plaintiff's ribs did not loom large in the case. It is clear that upon the evidence, it was open to Conomos DCJ to reach the conclusions he did. His appreciation of the truthfulness and accuracy of the appellant's evidence was a necessary precondition to a finding that the appellant's complaints were the result of the accident. The doctors were not called. We were informed that in most cases where damages are claimed for personal injuries in the District Court, medical practitioners do not give evidence. Probably that is because in many cases, such as in the present, there would be no point in calling a doctor merely for a doctor to say that his opinion is dependant upon the truthfulness and accuracy of the history given to him or her by the plaintiff. If a judge is not prepared to accept a plaintiff's description of pain and disabilities given on oath in court, it is hard to see how he would if he rejected medical opinions based upon similar descriptions given to doctors by the plaintiff out of court. 6 UNREPORTED JUDGMENTS Although not mentioned as a separate ground of appeal, it was submitted that the learned trial judge misunderstood and/or misapplied the information contained in the clinical notes of Dr Kalmath. The clinical notes were the documents upon which the appellant was cross examined. They have been supplied to us in typed form because the handwriting was mostly illegible. The notes make it clear that throughout 1982 and 1983 the appellant had complained of pain in the lower back and the neck and he had been nervous and depressed during that year. It also shows that in 1984 he complained of tenderness and pain in the neck, the thoracic spine and lumbar spine. There is one reference to a complaint of pain in the neck in 1985, and two of pain in the back. In July 1986, the appellant complained of low pain in both sacro iliac regions said to be tender over the whole of the thoracic and part of the lumbar and sacral spine. Although there were a number of complaints made by the appellant to Dr Kalmath which he said he could not remember when he gave evidence, it was not correct for the learned judge to hold that the notes revealed that in 1986 "until some months before the accident" he had consulted Dr Kalmath for headaches, neck pains, nervousness and depression, tension and in relation to pains in his low back. I have said the notes reveal that he complained about his back once in 1986. However, it is fairly clear that it was open to the learned trial judge to conclude that if Dr Kalmath's clinical notes correctly recorded the appellant's pre accident complaints, the plaintiff had real problems with his spine before the subject accident. I do not think it has been shown that the assessment Conomos DCJ was flawed. Conomos DCJ's estimation of the appellant formed a substantial part of his reasons for judgment and it has not been demonstrated that he misused the advantage he had. In these circumstances, it is inappropriate for this Court to interfere (see Abalos v Australian Postal Commission (1990) 171 CLR 167 and SS Honestroom v SS Sagaporack [1927] AC 37). The above conclusion puts an end to the appellant's complaint that Conomos DCJ erred in failing to award him agreed out-of-pocket expenses. There was no agreement as to the appellant's entitlement. The respondent agreed that the appellant had incurred the expenses but did not agree that those expenses were incurred as a result of the accident. In these circumstances, unless the findings of Conomos DCJ are to be set aside, no challenge could be made to his, somewhat arbitrary, apportionment, bearing in mind that he erred, if he did, in favour of the appellant. It is agreed that Conomos DCJ erred in failing to award interest on past economic loss. The respondent did not oppose application being made at the hearing of the appeal that the notice of appeal be amended and it has not submitted that the appellant's contention is not correct. That, however, is not a reason why it is appropriate that this Court reassess the whole claim. (Indeed, if the plaintiff's claim had to be reassessed, the only appropriate order, bearing in mind the findings on credit, would have been for a new trial.) In Beneke v Franklin [1975] 1 NSWLR 571 at 576, it was recognised that where error is shown, it does not necessarily follow that the appellate court was required to make a reassessment or, I would add, order a new trial. The Appeal Court can confine itself to dealing with an identified item if that item is truly severable. In the present case, interest on past economic loss is a good illustration of a severable item. WAZAR v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Cripps JAY It follows from what I have said that the appeal should be upheld, the judgment of Conomos DCJ be set aside, except as to costs, and in lieu thereof judgment be entered for the appellant in the sum of $10,757.27 being the award of the trial judge plus interest on past economic loss for a period of three to five years at 8%. Costs It would seem to me, with respect, that there was an argument to the effect that under Pt17 R10 of the District Court rules Conomos DCJ could have applied the slip rule and awarded the appellant interest. In L Shaddock and Associates Pty Ltd v The Council of the City of Parramatta (1982) 151 CLR 590, the High Court considered it had the power under its slip rule to amend its order by providing for the payment of interest which, because of the inadvertence of the party's legal representative, it failed to make when ordering judgement in favour of the plaintiff in the action. In Shaddock, the High Court distinguished an earlier Victorian case, Brew v Whitlock (No 3) [1968] VR 504 which decided that the slip rule could not be used and also considered the approach it had earlier taken in dismissing an appeal in Brew (Whitlock v Brew (1968) 118 CLR 445). The Victorian legislation required a specific application to be made for interest and that circumstance was regarded as relevant by the High Court in Shaddock. S83A of the District Court Act 1973 does not require a specific application to be made. That being so, there is a strong argument that, in this case, it would be open to a District Court judge to amend the record by the slip rule. However, the matter has not been fully argued. No objection was taken to the notice of appeal being amended. In these circumstances, I think the appropriate course is for each party to bear his or its costs of the appeal. Appeal allowed. No order as to costs. Appeal upheld. Judgment of Conomos DCJ set aside. Judgment to be entered in the sum of $10,757.27 being the award of the trial judge plus interest on past economic loss for a period of 3-5 years at 8%. No order as to costs. Each party to bear his or its costs of the appeal. Counsel for the Plaintiffs: A Reoch Instructed by: Lacey and Co Counsel for the Defendants: R Tonner Instructed; by: P Andresakis, GIO Parramatta