GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v GAUCI SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KirBY P, PRIESTLEY and SHELLER JJA 19 May 1992, 19 May 1992 [1992] NSWCA 83 DAMAGES — assessment — whiplash injury causing headaches and depression — video films show plaintiff working in garden — do not provide objection evidence to authorise setting aside judgment based on trial judge's acceptance of plaintiff. DAMAGES — motor vehicle injury — liability admitted — cervical whiplash — complaints of pain, headaches and depression — trial judge (Lloyd-Jones DCJ) enters judgment for $102,000 — appeal by insurer — whether appealably excessive — whether incontrovertible evidence of exposed video film showing plaintiff working in garden inconsistent with conclusions upon which components of judgment based — held: (1) Although the appeal was by way of rehearing, the Court of Appeal was only entitled to set aside the judgment and components of it if it were shown that the trial judge had erred in his assessments. Moran v McMahon (1985) 3 NSWLR 700, 715 (CA) applied; Abalos v Australian Postal Commission (1991) 171 CLR 167 applied; ORDERS 1. Appeal dismissed; and 2. The appellant to pay the respondent's costs. Kirby P This is a defendant's damages appeal Lloyd-Jones DCJ which raises no issue of principle. INJURY, JUDGMENT AND ASSESSMENT OF THE PLAINTIFF The defendant insurer (the appellant) contends that the award of damages to the plaintiff/respondent was appealably excessive to such an extent as would authorise this Court to disturb the judgment entered by his Honour. The principles to be applied are not in doubt. They were explained by Priestley JA in Moran v McMahon (1985) 3 NSWLR 700 at 715 (CA). They have been elaborated in many like cases. The respondent was injured in a motor vehicle accident which occurred on 6 November 1984 at Bass Hill, near Sydney. The vehicle in which he was proceeding was stationary at an intersection when it was struck from behind by a vehicle, for the negligent driving of which the appellant is, in law, responsible. The respondent suffered shock, some bruising and a cervical whiplash injury which resulted, as he said, in severe headaches. The liability of the appellant to the respondent was admitted at the trial. The case came on for the assessment of the respondent's damages before Lloyd-Jones DCJ. His Honour awarded the respondent damages made up of the following components: Past general damages $35,000 Future general damages 20,000 2 UNREPORTED JUDGMENTS Out of pocket expenses 3,987 Past economic loss 20,000 Future economic loss 15,000 Interest on past 9.000 economic loss Total $102,98 The case was brought within the ordinary jurisdiction of the District Court. There was no extension of that jurisdiction by agreement of the parties. Accordingly, the limit of the Court's jurisdiction was $100,000. However, it was accepted, both at trial and in this Court, that that amount did not govern the award of interest or costs. As the component for interest took the total judgment over the jurisdiction limit, and otherwise it would have been within that limit, no point was taken on jurisdiction. I shall assume, as the parties did, that none exists. Accordingly, the judgment of $102,000, entered by his Honour as a rounded sum taking into account the components already set out, was within his Honour's jurisdiction. The question before this Court in the appeal is whether that sum was appealably excessive in the circumstances. The learned trial judge accepted the respondent as a truthful witness. He found that he did not exaggerate his symptoms, nor did he overstate his problems. He found expressly, that the respondent was a conscientious person. This Court, like his Honour, has had the advantage of seeing a series of video films which illustrate the activities of the respondent on two dates; namely, 22 August 1990 and 13 October 1991. I shall return to these tapes. However, this Court did not have the advantage, which Lloyd-Jones DCJ had, of observing the respondent giving evidence. Conventionally, the observation of a witness is regarded as being a matter of great importance in resolving issues contested at a trial. By the authority of the High Court of Australia, which binds this Court, we are obliged to defer to conclusions reached by the trial judge concerning evidence which, directly or indirectly, are derived from the observations of witnesses, even, as it is said, taking into account the "subtle influence of demeanour" upon the conclusions which the trial judge has reached. See Abalos v Australian Postal Commission (1991) 171 CLR 167, 179 and cases there cited. This Court is only entitled to disturb a conclusion based wholly or in part upon the impression of witnesses if it is satisfied that the trial judge, as it is put, has misused his or her advantage. Thus, it may do so if the conclusion reached is contradicted by indisputable objective evidence, or if the conclusion is otherwise palpably erroneous. It is important to cite these principles at the outset of these reasons because the respondent's principal complaint, by the time the matter came on for trial before Lloyd-Jones DCJ was of headaches and of other subjective symptoms, such as depression, which are not externally observable. Long ago it was said that the Devil himself knoweth not the mind of man. Ordinarily, Judges have no special insight into the genuineness of complaints such as headaches or depression unless some objective test can demonstrate the truth or falsity of the statement. Judges, such as Lloyd-Jones DCJ at trial, and this Court on appeal, are thrown back very much on the acceptance or rejection of the evidence of the person who deposes to the headaches and depression. An URGOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v GAUCI (Kirby P) 3 assessment of the intensity, duration and consequences of such complaints was a matter dependent almost entirely upon the acceptance or rejection of the evidence of the respondent himself. As I have stated, the trial judge expressly accepted the respondent. That acceptance limits significantly what this Court can do in the circumstances of this appeal. Effectively it is bound, as I see it, to accept the respondent's evidence and then to ask whether, on that basis, the judgment entered was appealably excessive. It is authorised to disturb the assessment only if it is demonstrated that the judge was wrong by reference to objective, incontrovertible evidence available to it. In this regard the appellant relied most heavily upon the video films taken of the respondent's activities on the days stated. But it is appropriate, before coming to these films, to note that there were a number of other indicia which gave a measure of support to the respondent's complaints. Most important amongst these was the fact that, prior to the injury, there was no hint or suggestion that the respondent had similar complaints. This fact emerged in a trial in which the respondent himself was the only witness to give oral testimony. No oral testimony was called either from his employer, from fellow workers, members of his family, or any other person. Nor did the appellant call any witnesses to give oral evidence. This was so although, as the video films indicate, the appellant took some pains to conduct detailed investigations of the activities of the respondent. No oral evidence was brought from medical witnesses. As is so often done in these cases, and, as is often remarkable, the trial judge had to determine the case on the oral testimony of the plaintiff/respondent and the written reports of the medical witnesses, to which were added, in this case, a small number of employment reports concerning the respondent and the films. INDICIA TO SUPPORT THE COMPLAINTS OF PAIN AND HEADACHES There were other indicia which supported his Honour's conclusion and which went beyond the pre-injury record of the respondent as it emerged from the evidence which I have described. First, the respondent claimed an inability to continue certain lawnmowing activities which he had conducted as a business sideline on weekends prior to his injury. There appears to be no doubt that before his he did conduct a small lawn mowing business on a "permanent casual" basis. This was demonstrated by his income tax returns, which were admitted into evidence and which indicated a return of regular income received from that activity. Secondly, the respondent claimed an interference in his work performance resulting from persistent migraine-like headaches, a loss of concentration and depression. Reports of assessments of his employment activities were tendered at the trial. They did show that he had complaints which were described as complaints of "health" and "waning enthusiasm", which would be consistent with the complaints of headaches, loss of concentration and depression deposed to. Thirdly, the respondent complained of severe problems with his neck and shoulder. There was evidence that he twice underwent manipulation under anaesthetic; namely, in February 1985 and February 1987. It would seem extremely unlikely that the respondent would have subjected himself to these procedures unless there was a genuine source of pain at an unacceptable level. He also underwent physiotherapy for a time. Myelography was predicted by Dr Kendall, neurophysician, but this does not appear to have been carried out. Likewise, an intra-periarticular injection of the left shoulder was suggested by Dr 4 UNREPORTED JUDGMENTS Kendall in August 1987, but this was also not carried out. Nevertheless, the manipulations were certainly undertaken. They bear out, at least at the time when they were undergone, the complaints of pain for which they were sought in relief. THE ALLOWANCE FOR PAST ECONOMIC LOSS IS SUSTAINED It is now appropriate to turn to the complaints about the loss of economic capacity in the past. The amounts allowed by his Honour, in that respect, highlight the issue posed for our determination in this appeal. The amounts allowed by his Honour, constituting $20,000 in this component of the judgment. They were made up of a large number of items. One of them was not really in dispute; namely, the sum of $1,592 which was repayable to the respondent's employer, the Commonwealth Banking Corporation, in respect of the time which he lost consequential upon the subject injuries. The two other components making up this sum included, first, an amount of $17,050 which his Honour provided, being $55 per week for six years. The $55 was made up of the average sum which the respondent had demonstrated, by his pre-injury tax returns, he had been able to earn performing lawnmowing services on up to eight properties on the weekend. The six years multiplier was the period which elapsed between injury and trial. The second component was a sum of $5,000 which his Honour allowed for the respondent's loss of promotion within his employment with the Commonwealth Bank. So far as the lawnmowing is concerned, the respondent said that he had tried to perform lawnmowing after injury but knew in himself that he could not do it. The trial judge did not allow the full amount of $17,050 claimed. However it is obvious, as he arrived at a total sum of $20,000, that a very large component of that element in the judgment was made up of the allowance which was made for the loss of the potential capacity to perform lawnmowing duties on top of his duties in the bank, with which he persisted. Turning to the duties in the bank and the claim for loss of advancement, it is pertinent to observe that no witnesses were called from the respondent's employer to contrast his pre-injury and post-injury employment capacity. The evidence was left at the oral evidence of the respondent himself, the evidence of the employment assessments and the inferences drawn from these. The evidence of the respondent demonstrated that he had complained of a difficulty in concentration, a loss of interest in his work and headaches which were persistent. From this evidence in chief it was suggested that the respondent had presented sufficient testimony to warrant the conclusion which Lloyd-Jones DCJ reached - that there was an element of loss of opportunity of promotion which was suffered as a result of the subject injuries which occasioned loss and sounded in damages. The appellant drew attention to cross-examination in which it emerged that a great part of the respondent's activities after injury were devoted to his new house and to assisting his second wife. It was by reference to the respondent's desire to support his wife, including her transport requirements, that he explained, partly at least, his unwillingness to attend courses which, by inference, would have assisted him in promotion in his work. In reaching the amount of $5,000 which he attributed to loss of promotion opportunities prior to trial, Lloyd-Jones DCJ said that he took into account the fact that the respondent was disinclined to perform the courses. It was therefore suggested that this Court should look on the component which the trial judge allowed as one more attributable to a loss of economic capacity rather than to a loss of actual wages in the Bank during the period prior to trial. URGOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v GAUCI (Kirby P) 5 Clearly, the amount of $5,000 to which his Honour referred must be discounted somewhat because the total of the integers (the amount repayable to the Bank, the amount claimed for loss of lawnmowing, and the amount for loss of promotion) is more than the $20,000 which his Honour allowed. However, when one looks at the evidence of the respondent concerning his loss of concentration, loss of interest and repeated headaches, I believe that it was open to the trial judge to reach a conclusion that some part of his loss of interest in his work (and hence his loss of promotional opportunities) was attributable to the consequences of the subject motor vehicle injury. Certainly, there was medical evidence which was available to his Honour which, if he accepted it, would sustain such a conclusion. Dr Ell, for example, stated that the headaches of which the respondent complained were directly attributable to his injuries. Dr Kendall stated that in his opinion the possibility of a neurological basis, caused by the accident, could not be excluded. By this reasoning the component of $20,000 in the judgment entered by the trial Judge in respect of past economic loss is sustained. This Court would not be authorised to disturb it. FUTURE ECONOMIC LOSS: SIGNIFICANCE OF VIDEO FILMS When one turns to the future, Lloyd-Jones DCJ allowed $15,000 for future economic loss. Most of this would appear to be attributable to the continuing impact of the loss of the opportunity or inclination to perform lawnmowing work, and the ongoing effect of the loss of promotional opportunities in the Bank. It is here that the video tapes which were tendered were most critical to the complaints of the appellant about the judgment which Lloyd-Jones DCJ entered. As I have now twice said, the tapes referred to two particular days in the life of the respondent. They were films taken at which I take to be the respondent's home. They were films taken of activities performed, for the most part, in the garden and front and back lawns by the respondent. The film exposed on 22 August showed the respondent gardening. It showed him rotating his arm; climbing over a fence; easily closing the garage roller door; lifting and carrying a hose container; and at one stage running with the hose reel in his hand. Nothing in that tape denies the truth of the respondent's assertions that he suffered headaches, that they caused him depression, and that they caused a loss of interest in his work. On the contrary, such conditions are entirely consistent with the performance of gardening duties. Many people resort to gardening duties as a therapy, for the purpose of filling in time and taking their mind off their anxieties. There is nothing, as I see it, in any of the film exposed on the first day in question which gainsays the respondent's evidence, which Lloyd-Jones DCJ accepted. The film exposed on 13 October 1990 was taken over many hours. It was also directed at the respondent's activities at his home. It showed the respondent engaged in lawnmowing, apparently over a protracted period. It was not suggested that the respondent had ever been seen mowing lawns on premises other than his own. In this sense, the tape which we have seen is quite different from that which one sometimes sees in cases of this kind where the suggestion is one of deception. The respondent never denied that he could perform his own lawnmowing. In his evidence, both in chief and in cross-examination, he acknowledged a capacity to do so. His complaint was not of a physical incapacity to perform lawnmowing but of a varying physical and mental condition which, on some days, would prevent his performing such duties and which would 6 UNREPORTED JUDGMENTS certainly prevent his doing them as a "permanent casual" worker committed to performing quite intensive lawnmowing activities on weekends for eight people on a regular basis. The videotapes of 13 October 1990 commenced at 7 am. They showed the respondent manoeuvring a mowing machine, which he appeared to be able to operate with ease. They showed him pushing it up a hill, and manoeuvring what appeared to be a bin of garden refuse. They showed him, later in the day, using an edge cutter, lifting a hose reel, bending effortlessly, driving his cars in and out of his garage, opening and closing a garage door, apparently with ease, mowing both in the front and in the back of his yard, and otherwise walking gingerly and moving about with apparent ease. A person identified as his neighbour was seen performing what appeared to be much more vigorous activities. It is not clear from the tape, or from the evidence, whether the neighbour was working on his own property or on the respondent's property. I shall assume the former. However there was certainly a contrast, as I viewed the film, between the energy of the digging by, and other activities of, the neighbour and what can be described as the comparatively leisurely activities of the respondent doing nothing more than mowing his lawn with the use of what seemed to be up to date, efficient mowing equipment. Where then does this film leave us in this appeal? Lloyd-Jones DCJ saw the film. He concluded as follows: "Prior to a tape being shown, he had admitted quite frankly and openly that he could do, and did, all the things he was shown do to in the tape. But, he indicated, and I accept that, this was something he could only do on good days. As I have said, it is quite a different matter cutting a lawn at one's own pace and on a day when one feels well enough to do so, and another thing, each and every weekend, to cut between eight and fifteen lawns in an employed position. I simply do not know if the tapes shown are the only tapes that were taken of him. I do not know one way or the other. I do not know if there were tapes taken that indicated less activity on his part. There was simply no evidence proffered in that regard. One must bear in mind that the main problem now is the headache difficulty, together with the depression, and the neck and shoulder are secondary." CONCLUSION: VIDEO FILMS ARE CONSISTENT WITH COMPLAINTS I have come to the view that this Court would not be entitled, on the basis of the evidence of the films which it has viewed, to reach a conclusion different to that expressed by Lloyd-Jones DCJ. If the case were one where the respondent was complaining of total immobilisation, the position would obviously be different. If the case were one where the respondent was complaining about a bad back, the position might be different. But this is a case where the respondent's principal complaint was of headaches, which caused depression and inattention and which varied from time to time. Counsel for the appellant, rightly in my view, conceded that a great deal depended upon the impression which the Court derived from the tapes. It was for that reason that the Court sat through the entirety of the tapes and has given therefore consideration to their consequences for the acceptability of the conclusions of the trial judge. For myself, I paid particular attention to the films because I have to say that the amounts allowed by Lloyd-Jones DCJ seemed to me to be extremely high and higher than I would myself have allowed if the case were before this Court for assessment. However, although the appeal is one by way of rehearing, it is not an \GROVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v GAUCI (Sheller JAY appeal in which the case just begins again. We do not see the respondent or other witnesses give evidence. Therefore, we are confined to disturbing the decision of the trial judge only if we are able to conclude, relevantly on objective evidence, that the trial judge was wrong, that he misused his advantage, and that we are in as good a position to make an assessment as he was. Because I cannot so conclude and because so much depended upon acceptance that the tapes would authorise me to reach a difference conclusion, and because I do not believe that the tapes lead to a different conclusion, the judgment of Lloyd-Jones DCJ must stand. INTEREST, GENERAL DAMAGES, CONCLUSIONS AND ORDERS It was agreed that the interest component of his Honour's judgment, which was challenged, was dependent upon a conclusion concerning the past economic loss which was attacked. It is also appropriate to say that the criticisms of the components concerning general damages also depend, very much, upon the assessment of the respondent's headaches and their impact on his life. Given that I do not believe that this Court is authorised to reach a conclusion different than that expressed by Lloyd-Jones DCJ, I do not believe that the amounts allowed for this component of the judgment can be disturbed, any more than the amounts for past and future economic loss. The consequence is that I am of the opinion that the judgment is sustained. The following orders should be made 1. Appeal dismissed; and 2. The appellant to pay the respondent's costs. Priestley JA I agree generally with the President. Although my reasons for coming to the same conclusions as he has stated are not precisely the same as his, they are not sufficiently dissimilar to make it worth while to explain the differences. I agree with the orders proposed. Sheller JA I agree with the President. Kirby P: The orders of the Court, accordingly, are: 1. Appeal dismissed; and 2. The appellant to pay the respondent's costs. Counsel for the appellant: RC Tonner Solicitors for the appellant: M Harakos, Government Insurance Office of New South Wales Counsel for the respondent: AJ Lidden Solicitors for the respondent: Bryden Doherty and Sheard