GIO OF NEW SOUTH WALES v ZERAFA SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, PRIESTLEY and SHELLER JJA 1 April 1992, 1 April 1992 [1992] NSWCA 76 APPEAL — damages — quantum — appellant argues (1) mistake as to award of interest on general damages, (2) $40,000 general damages for injuries to neck, shoulder and knees sustained in motor accident excessive — Held: (1) mistake to award interest, (2) general damages award properly considered and within reasonable range. ORDERS 1. Appeal upheld. 2. Judgment set aside; in place of it judgment for $46,911.33 taking effect at 5 February 1986. 3. Appellant to bear costs of appeal. Priestley JA This is an appeal by the Government Insurance Office, the defendant in District Court proceedings, against the amount of damages awarded in those proceedings by his Honour Judge Johnston on 27 December 1990. The plaintiff's claim arose from a car accident on 5 February 1986 for which the defendant admitted liability. Judgment for the plaintiff was entered in the sum of $49,661.33. This was made up of the following: past economic loss $3,750; interest on past economic loss $2,750; out-of-pocket expenses $3,161.33; general damages $40,000. In the appeal the defendant has challenged the figures for interest and general damages. As to interest, it is conceded by counsel for the plaintiff that his Honour was in error in awarding interest on the general damages component and that the error should be corrected. That ground of appeal will therefore be upheld. As to general damages, the defendant has submitted that $40,000 is significantly beyond the range appropriate for the plaintiff's injuries which the defendant described as "minimal". The submission was based upon a rapid but extensive review of the evidence. This review consisted of a division of the plaintiff's injuries into three categories - an injury the plaintiff had suffered to his shoulder, an injury to his neck, and an injury to one of his knees. I do not think it necessary, in disposing of the appeal, to go through the evidence in the same detail as defendant's counsel needed to do because the trial judge described his own synthesis of the evidence in a passage in his reasons which I do not think that I could improve upon. In this passage he sets out simply and consecutively the main features, as he saw them, after he made his various findings of fact. Amongst his findings was one, that the plaintiff was an impressive witness who had a tendency to play down his case, rather than to embellish it. Based upon his view of the plaintiff and his assessment of the evidence that had been placed before him, the trial judge, after briefly describing what happened at the time of the accident and the injuries and pain the plaintiff then suffered, continued: 2 UNREPORTED JUDGMENTS "His main complaint regarding the neck injury is that he experiences excruciating pain on any extension of the neck. He had experienced pain on and off but he has been trouble-free for the past three months although some three months ago he experienced a recurrence of neck pain. After the accident he experienced pain every second day and he described the pain in the back of the neck as a jabbing or stabbing pain. His knee was cut and at the scene he was treated by the ambulance officer. For some time after the accident he walked with the aid of crutches. He described how last year whilst walking his knee gave way from underneath him stating that this has happened on a prior occasion. For a period he had to wear a brace on his left knee. This is supported by exhibit C, a photograph showing the plaintiff wearing a knee brace and a cervical collar. He described how he practised his profession as a graphic artist. He works as a typesetter standing or sitting at a typesetting machine which comes up to about waist height. It does cause him some difficulty but he takes rest periods. Apart from the ten weeks loss of employment after the accident he has, by a prior arrangement with his employer, taken time off from work which he describes as a rest period but makes no economic claim for those rest periods. It is a happy arrangement with his employer. Prior to the accident the plaintiff played squash with the Condell Park Club. He played squash whilst he was at school and on leaving school he joined the Condell Park Squash Club. Since the accident he has not returned to that sport claiming he is afraid to play squash. It is recognised that squash is a vigorous and strenuous game. As he said, he is afraid because it may aggravate or upset the knee and the neck. He was also a jogger, jogging some two days a week but he has not resumed that pastime claiming that it would possibly aggravate his neck or his knee and he has not returned to that pastime. Shortly after the accident he experienced some marital problems. He found that sexual intercourse became painful with lack of concentration and he had no desire to continue but that has now resolved. He lives in a villa home. He has a small yard and he does some gardening but I gather from his evidence he is not a keen gardener but his wife helps with the gardening. He is a married man with young children. One child was born prior to the accident and twins were born after the accident. He plays with the children and he makes no exaggerated claim that he is deprived of the enjoyment of playing with the children. He claims he knows his limitations and can cope with that situation. There have been periods of time taken off work - short periods of a week at a time, or four days at a time - I do not propose to recount those in detail; but he said since November 1986 he has not taken lengthy periods of time off from work except for an odd day here and there. He does not claim that he is in danger of losing his position. He said his job is safe and secure and this is supported by group certificates showing not only has he a safe and secure job but his salary has doubled over the years. As he said there are no signals from his employer to indicate that there is any danger of being dismissed or there being any drop in salary. On a number of occasions he was asked by Mr Sandrasegara as to the occasions he experienced pain when he used crutches and in a very frank and open manner he claimed he could not remember but he recalls using them for periods of time. URJ GIO OF NEW SOUTH WALES v ZERAFA (Priestley JA) 3 He wore the cervical collar for some months but he had to take it off for periods of time because it stiffened up his neck. He was referred to a physiotherapist for treatment but shortly after treatment his neck would stiffen up again. He has, over a period of time, been using pain killers, applying liniment to his injuries and is assisted by his wife who applies liniment when he is ever in pain. In the winter time he experiences more trouble with his injuries because of the weather and has, on occasions used a hot water bottle to alleviate the pain. That is a summary of his evidence in chief. He was not subjected to a very long or vigorous cross-examination but it was an enquiring cross-examination and I propose to briefly refer to some aspects of the cross-examination. What surfaced in the cross-examination was that he had no problem with his knee or his neck prior to the accident. He admitted that the photograph, exhibit C, was probably taken a day after the accident, he cannot remember. He said his main problem is with his neck, the back extension when he looks up or turns real suddenly and he demonstrated how this affects him. He said that the pain, if he turned sideways suddenly, is just a sharp pain but goes away. He did say, as I recall - and I invite counsel to correct me if I am wrong - that sometimes these pains last for a few minutes and sometimes as long as a few hours. Today he said his knee - to use his expression - has come good after the accident but he still believes that the trauma of the accident is the only cause that can be related to the knee giving way from underneath him. Recounting his difficulties with his neck and also with his knee he said quite frankly he can cope with it and he is coping with his work, experiencing no real difficulties but he said he was afraid to return to his normal sporting activities admitting he was a nervous person." Counsel for the defendant said that there were two aspects of the account given by the trial judge which were subject to criticism. The first complaint concerned the judge's use of the word "excruciating" as describing what the plaintiff felt on any extension of the neck. It is true that the plaintiff himself did not use that word. What he said, in the relevant part of his evidence, was that he experienced "jabbing, stabbing pain". To the extent that there is any difference between the meaning of the word used by the judge and the words used by the plaintiff, I do not think it is of sufficient significance to affect the overall assessment by the judge of the plaintiff's condition. The second criticism was, that the trial judge said at one point that, in doing his work as a typesetter, the plaintiff experiences some difficulty but he takes rest periods. Counsel submitted that the judge meant by that that he took some actual time off work, but the passage in the plaintiff's evidence upon which what the judge said is obviously based seems to me to show quite clearly that the judge was doing no more than repeating what the plaintiff himseLf had said and using the words "rest periods" in the same sense as the plaintiff had used the word "rest", meaning a rest at work. Once I reach this point, that is that the passage I have set out from his Honour's reasons is not open to significant challenge as a statement of the plaintiff's history and condition up to the time of the trial, it seems to me to be very difficult to accept the submission that the amount awarded for joint damages is of an order with which this court should interfere. 4 UNREPORTED JUDGMENTS The trial judge, in my view, carefully considered the plaintiff's situation and in the always difficult task of attaching a money sum to matters of pain, suffering, loss of amenities and the like, produced a figure which, to my mind, is a reasonable one and within the range of what is usually referred to as discretionary judgment. In cases of this kind, there is often very little more that the trial judge, or counsel on appeal, or the appellate court, can do beyond trying to gain a clear appreciation of the factual situation in which a plaintiff finds himself and then stating a figure which, to the assessor, seems reasonably in line with the general experience of the assessor bearing in mind the particular requisites of judgment set out by the High Court in Planet Fisheries v La Rosa (1968) 119 CLR 118. Applying the rules as stated in that decision, it seems to me, as I have already said, that the figure of $40,000 is beyond the reach of an appeal which has to show that the amount awarded was, at the very least, unreasonably beyond what the court, in exercise of its discretionary judgment, should have awarded. At one point counsel for the defendant indicated that the proper procedure for the court to follow, once the plaintiff conceded that the first ground of appeal concerning interest should be allowed, would be to set aside the judgment below and then itself reassess the damages which should be awarded to the plaintiff. I do not think that is strictly necessary in this case. The first ground of appeal is something which either could have been corrected under the slip rule or is so close to a matter of that kind as not to attract the obligation of the court to embark upon a full reassessment of the matter once it has decided that the judgment below must be set aside. Even if it were necessary to reassess my own opinion is that the figure which would result from reassessment would be at least the figure arrived at by the trial judge. The result is that the first ground of appeal is upheld. The second ground of appeal fails. The judgment below should be set aside. The amount of that judgment should be reduced by $2,750, and, if my arithmetic is correct, that becomes $46,911.33 and, subject to that being checked by counsel, in my opinion, in lieu of the judgment below, judgment in that sum should be entered as at the date of the original judgment, 5 February 1986. In my view also, the costs of the appeal should be borne by the defendant/appellant. Mahoney JA I agree with what is proposed. Sheller JA I agree with Priestley JA. Mahoney JA: The order of the court will be that the judgment below is set aside and there will be substituted a judgment for $46,991.33 to take effect from the date of judgment. Otherwise the appeal is dismissed with costs. 1. Appeal upheld. 2. Judgment set aside; in place of it judgment for $46,911.33 taking effect at 5 February 1986. 3. Appellant to bear costs of appeal. Counsel for the appellant: RP McLoughlin Solicitors for the appellant: P Jessop - Government Insurance Office Counsel for the respondent: C Sandrasegara Solicitors for the respondent: DS Noier