KONCURAT v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL GLEESON CJ, KIRBY P and PRIESTLEY JA 22 October 1992, 22 October 1992 [1992] NSWCA 124 APPEAL — fresh evidence alleged falsification of basic assumptions at trial — proper approach to tender — HELD: The fresh evidence should be rejected. Radnedge v The Government Insurance Office of New South Wales (1987) 9 NSWLR 235 (CA) and CSR Limited vy Bouwhuis, Court of Appeal, unreported, 23 August 1991 applied. DAMAGES — general damages — suggested inadequacy — psychiatric injury — whether normal or abnormal reaction by injured person — choice between medical opinions expressed in reports — future economic loss — judge's assessment of plaintiff and medical opinions — future medical treatment — HELD: (Priestley JA; Gleeson CJ and Kirby P concurring): No error shown — appeal dismissed. Priestley JA On 28 April 1987 Mr Murphy Lovre Koncurat then a month short of twenty-five was badly injured in a road accident for which the Government Insurance Office later admitted liability. The injuries he suffered were described by Dr Roarty, under whose care Mr Koncurat came immediately after the accident, in a report dated 28 June 1990 as follows: "He was a passenger on a motor cycle which was involved in a collision with a car. He was admitted to St Vincent's Hospital with compound fractures of both legs involving each tibia and fibula. There was considerable displacement. He was taken to the operating room where both fractures were reduced and immobilised in plaster. However, early after that procedure he developed a severe compartment pressure syndrome in the left leg and it was necessary for him to be taken back to the operating room for decompression. At that stage, he had weakness of his peroneal nerve and, following the decompression for the compartment syndrome, he required skin grafting procedures to cover the defect. His right leg was treated conservatively by immobilisation in plaster and he was discharged from hospital after three months and then attended the Royal South Sydney Hospital for rehabilitation for a further two months. Ever since then, he has continued to complain of pain in both legs, the left side being more involved than the right. He is unable to stand for long periods or walk long distances and he has considerable pain in and around each fracture site and, particularly in the left knee which gives way frequently. He wears a knee brace to help the stability of his knee. His left leg feels numb, the sensory disturbance extending from the site of the fracture down onto the dorsum of the left foot and this accompanied by weakness of dorsi-flexion, which causes weakness of his left leg, which tires easily on walking. His left leg swells after walking and after any moderate degree of walking he has a throbbing type of pain as though it feels bruised. He does not think any significant improvement is taking place. He has been unable to obtain any other employment." Later in that report Dr Roarty gave his opinion: 2 UNREPORTED JUDGMENTS "Mr Koncurat has sustained the abovementioned severe bi-lateral fractures of the tibia and fibula. His present complaints are consistent. No reconstruction of the left knee will restore any real stability in the left knee and it will be necessary for him to wear a knee brace permanently. Furthermore, he will always have some residual weakness in his left foot and ankle and will be unable to stand for long periods or walk long distances. Therefore, he will be unable to carry out any work requiring any activity or agility of a sustained nature on his left leg. He will only be fit for semi-sedentary type of work. He will probably develop osteoarthritic change in the left knee in the distant future, on account of the cruciate ligament damage." Mr Koncurat as plaintiff brought proceedings in the District Court against the government Insurance Office as defendant. His case for assessment of damages was heard by his Honour Judge Conomos on 5 November 1990. A history of the plaintiff's working life was given. Put shortly, his case was that he had suffered psychological as well as physical damage, that his ability to earn a living had been severely impaired and that his future enjoyment of his non-economic and social life had also been disrupted in a major way. Judgment was delivered on 8 November 1990. After reviewing the facts of the case the judge assessed Mr Koncurat's damages under the following heads: general damages including $10,000 for future surgery $100,000; past economic loss $30,000; interest on past economic loss $8,400; out-of-pockets $6,523; and future economic loss $151,912; totalling $306,835. It was against the amount of this assessment that the plaintiff appealed. When the appeal came on for hearing this morning application was made on the plaintiff's behalf for leave to adduce fresh evidence. It appeared from this evidence amongst other things that the plaintiff felt strongly that the compensation he had been awarded was unjustly low by comparison with other awards he had heard or read about. The strength of his feeling about this was reflected in the fresh evidence application being very carefully prepared and energetically pressed. This preparation and presentation deserve commendation but the material available to work with was inadequate to the task. The court refused the application saying the reasons would be given at the same time as the decision on the appeal. The grounds relief on for the fresh evidence application were that events following the trial had falsified some basic assumptions common to both sides which were of importance at the trial. These matters were that the plaintiff will now have to have (a) an arthrodesis to his left knee and (b) further surgery for haemorrhoids. Further, that the plaintiff has now been diagnosed as subject to depression. I do not think the proposed evidence on these matters in fact falsifies the assumptions said to have been made by both sides at the trial. In regard to each matter there was extensive evidence at the trial and nothing that has happened since can be said to have been beyond contemplation at the trial. Indeed, in regard to the first matter relied on, that concerning what was said to be the immediate need for an arthrodesis to the plaintiff's left knee, there was as well as the affidavit of Dr Roarty which was relied on for this contention, also put before us an affidavit by Dr Quain who while recognising that he was junior to Dr Roarty and recognising that specialist's eminence in his field, nevertheless, very firmly expressed his own opinion that it would not be right to carry out the arthrodesis to the plaintiff at this time of his life. WRANCURAT v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Priestleg JA) It does not really matter whose opinion is the better. The fact that there is a different opinion among surgeons, both of whom are entitled to be regarded as expert in their field on this matter, shows that to say that an assumption, common to both parties at the trial has been falsified by later events is an over-statement. I should mention, if I have not already made it clear, that I think it was a proper and honest course for the plaintiffs advisers to take to put Dr Quain's affidavit before the court. The falsification of basic assumptions formula used to support the application was adapted by the plaintiff from what was said by Lord Wilberforce in Mulholland v Mitchell [1971] AC 666 (at 679-680) in a passage that has been many times taken in this court as stating the proper approach on fresh evidence applications; two of the more recent decisions on this are Doherty v Liverpool District Hospital 22 NSWLR 284 and CSR v Bouwhuis (Court of Appeal, unreported, 23 August 1991). Another part of the same passage from the opinion of Lord Wilberforce in Mulholland as that relied on by the plaintiff says that fresh evidence ought not to be admitted when it bears upon matters falling within the field or area of uncertainty in which the trial judge's estimate has previously been made. Each of the matters relied on by the plaintiff in the fresh evidence application is in my opinion within an area of uncertainty which all material before the trial judge plainly indicated as such. It is true that the proposed fresh evidence arguably shows that there have been some changes in the plaintiff's situation not apparently adverted at the trial as immediate possibilities but they are not such as to fall within any of Lord Wilberforce's criteria for admitting fresh evidence on appeal. The approach which the plaintiff sought to have the court take would require the court to take far too particular a view of what should be regarded as what were areas of uncertainty at the trial. Coming now to the appeal, the criticisms made on behalf of the plaintiff and the judge's reasoning fall under three principal heads. The first was largely concerned with the assessment of general damages. It was said that the judge's description of the effect on the plaintiff of his injuries, bearing his comparative youth in mind, warranted a higher figure for general damages than that allowed by the judge. More particularly it was submitted that there had been an error in the judge's assessment of the plaintiff's psychological condition at the time of the trial. There had been evidence concerning a period of depression suffered by the plaintiff and attributable to the accident. It was submitted that these depressions were of a kind that should be regarded as a psychiatric injury and it was then said that the trial judge either did not find that or, if he did, he under-estimated the severity of the psychological or psychiatric damage. Stress was laid on the judge's remark that he had had the benefit of a psychological report but did not consider the plaintiff was psychologically disturbed. It was said that his Honour's following observation was either inconsistent with what he had just said or was confused. What the judge said was that the plaintiffs disturbance resulted from the fact that the integrity of his body appeared marred and permanently interfered with, that he realised the extent of his disabilities and, a phrase taken up in a critical way by counsel for the plaintiff, the accident had come as a real slap in the face to him. 4 UNREPORTED JUDGMENTS It seems to me what his Honour was there saying is relatively clear. He was saying that the plaintiff had been disturbed by the marked change in himself as a physical specimen from his pre-accident condition to his post-accident condition. He was indicating, I think, that that was a very natural reaction and that the fact that he was still, at the date of trial, disturbed and occasionally liable to depression because of his consciousness of the change in himself did not mean that he had to be treated as psychologically disturbed. His Honour had in mind, I think, that it was a normal reaction rather than an abnormal one and not a reaction that had reached the stage where he was prepared to treat it as a psychological disturbance to be compensated as such. Further, on this aspect of the matter the trial judge's narrative of the medical history of the plaintiff following the accident shows that he had the various parts of the evidence bearing on his medical condition well in mind. It is noticeable also that only one expert person in this area gave oral evidence at the trial. This was Dr Roberts, a witness whose evidence ties in with the findings of the judge. The judge had before him a number of medical reports and was in the usual difficulty that trial judges find themselves in in regard to medical evidence: a mass of written material and very little opportunity of any of the experts being tested by questions asked either by counsel or the judge. The judge also had a full opportunity of seeing the plaintiff in the witness box and, as appears from a later part of his reasons, he gave particular emphasis to matters he observed himself in the way the plaintiff then appeared. So, in circumstances where the expert who gave evidence orally before him gave evidence consistent with his own findings, where also he had the opportunity I have mentioned of hearing and seeing the plaintiff on matters relevant to the claim that was being made concerning the psychological disturbance, and having read myself what his Honour had to say about these things, I am not persuaded that there is anything in his reasons which can be designated as an error which should induce this court to say he was wrong in his conclusions on this part of the case. The second head of criticism related to the judge's assessment of future economic loss. What the judge did was to make a finding that at the time of the accident the plaintiff had been earning approximately $300 a week net. This is a finding which I do not understand to have been explicitly attacked in the appeal. In any event it is very difficult to see how it could be attacked in view of the evidence given by the plaintiff and, in particular, his evidence that he did not disclose his full earnings to the income tax Commissioner. In those circumstances the reliability of his evidence concerning the precise amount of his earnings would have to be doubtful and the trial judge was necessarily left in a position where he had to make an estimate. It appears from his reasons that his estimate of $300 a week net was considerably above that for which the Government Insurance Office was contending. When he came to try and calculate, as well as one can, future economic loss from the date of trial, he adopted a figure of $200 per week as being his view of the diminution in the plaintiff's earning capacity. He was prepared to assume that loss throughout the period from the date of trial until the plaintiff reached sixty-five. He then discounted the resulting figure by what is the conventional figure for what are called vicissitudes, fifteen per cent. WRANCURAT v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (GleesoB CJ) Looked at simply in the way I have described it, and in the light of the trial judge's assessment of the plaintiff's physical condition, I can see no error of method or misunderstanding of fact in this approach by his Honour to future economic loss. To me it seems reasonable. The principal point of attack upon it was that the judge, it was submitted, had appeared to take a far too rosy view of the plaintiff's likely future earnings. At 212 of the appeal papers there occurs a passage in his Honour's reasons in which he said, amongst other things, that he is sure the plaintiff will always prosper and in which he refers to him as being a person of "that degree of personality and ambition which can only better the Australian economy". There are other remarks there which could be taken as indicating that the judge thought a bright future in business lay before the plaintiff. However, I think this is not what his Honour was really trying to convey. In the course of his evidence the plaintiff had said that, although he had a period of youthful exuberance in his years before the accident, he had become very serious towards the end of 1986 as to what he wanted to achieve in life - which was to have his own company, to have people working for him, to have his own jobs and contracts and do contracts for other people - and, he said, he was managing to get there. This referred to his trade of painting. It seems that his Honour had that answer in mind and also his observation of the plaintiff as being an articulate and intelligent person who had a degree of charm. There are observations to a similar effect in some of the medical reports. I mention again that the trial judge had the benefit of seeing the plaintiff. In matters of his ability to make himself understood, his ability to communicate with other people in a way congenial to those people, his Honour's assessment is obviously made from a position of much greater advantage than this court is in. When those factors are taken together, and also it is borne in mind that the figures used by his Honour and the result he reached in regard to future economic loss, are not far from what would be expected in any event on the facts, even without his Honour's observations about the plaintiffs bright future, the result I reach is that no error has been demonstrated in his Honour's reasoning. The passage relied on in particular to demonstrate error does not, when read in the whole context of what the judge heard and saw at the trial, over-state the position in such a way as to incline this court to interfere with this part of the assessment. The third principal head of criticism, which was given less emphasis than the two previous ones, concerned the allowance made by the trial judge for the plaintiff's possible future medical treatment. I think, on the evidence before him, that what the judge had arrived at in this respect was well within the range of a sensible allowance. In my opinion, therefore, the criticisms of the trial judge's reasoning are not made out. On the material before him I think he could have, within a reasonable range of overall figures, arrived at a somewhat higher figure than he did for the plaintiff's damages. Equally, I think he could quite well have arrived at a lesser figure. Nothing relied on in the way of criticism of the judge has led me to think that any figure in his heads of assessment of the plaintiffs damages is out of line with the ranges relating to those particular matters in cases of this type that this court sees in a great number of personal injury appeals that come before it. In my opinion the appeal should be dismissed with costs. Gleeson CJ I agree. 6 UNREPORTED JUDGMENTS Kirby P In respect of the proper approach to the admission of fresh evidence inan appeal, where such evidence has come to light since a trial, I remain of the opinion which I expressed in Radnedge v Government Insurance of NSW (1987) 9 NSWLR 235 (CA) at 239f and CSR Ltd v Bouwhuis, Court of Appeal, unreported, 23 August 1991, to which Priestley JA has referred. I will not persist with expressing the views which I stated there because for doing so I have earned the criticism of Samuels JA which was noted in the Australian Law Journal. See (1992) 66 ALJ 227. Consistent with the approach which is sanctioned by the Court in those cases (and in other cases, including Doherty v Liverpool District Hospital), I agree that, in the facts which are presented here, the evidence which was tendered was not to be received. I therefore joined in the order which was made during the course of the hearing rejecting the tender of the fresh evidence. In respect of the other matters which were argued in the appeal I agree entirely with what Priestley JA has said and with the order proposed. Gleeson CJ: The order of the court will be as proposed by Priestley JA. Appeal dismissed with costs. Counsel for the Appellant: AB Hall QC with DW Elliott Solicitors for the Appellant: Morgan Ardino and Co Counsel for the Respondent: CT Barry Solicitors for the Respondent: Solicitor for Government Insurance Office of New South Wales