DARR v PAPALKAR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, PRIESTLEY and SHELLER JJA 31 March 1992, 10 April 1992 [1992] NSWCA 53 APPEAL — damages — motor vehicle accident — plaintiff (a medical practitioner) suffers pain and decreased work capacity — defendant appellant argues (1) damages award for past and future economic loss excessive (2) 7.5% interest rate on past general damages inappropriate — held: (1) evidence relied on by trial judge sufficient to justify figure assessed (2) interest award must be limited to 2% because of MBP vy Gogic (1991) 171 CLR 657 and subsequent decisions in Court of Appeal. Mahoney JA I agree with the judgment of Priestley JA. Priestley JA This is an appeal by the defendant in District Court proceedings against the amount of damages awarded in those proceedings by his Honour Judge Lloyd-Jones on 6 December 1990. The plaintiff's claim against the defendant arose from an accident on 1 October 1982 in Dungog. The plaintiff was a passenger in a car driven by his wife which collided head-on with a motor cycle ridden by the defendant. In the statement of claim filed by the plaintiff in December 1986 he alleged the defendant was riding at an excessive speed on his incorrect side of the road. The defendant admitted liability. The question for the trial judge was therefore limited to deciding the amount of the damages proved by the plaintiff. At the time of the accident the plaintiff, who was born on 15 June 1943, was a duly qualified medical practitioner practising at Dungog. Evidence of what happened to him in the accident was given in some detail by the plaintiff himself and was also described in clinical terms in medical reports by Dr Isaacs who first saw the plaintiff about three weeks after the accident. This evidence showed that the plaintiff had suffered a fractured shaft of his left third metacarpal bone, a laceration over the posterior aspect of the right forearm, a contusion over the anterior aspect of the chest wall over both the right and left lower aspects and the xiphisternal region. Dr Isaacs' prognosis when he first saw the plaintiff was optimistic. At that time the plaintiffs left hand was immobilised in a boxing glove bandage, but Dr Isaacs was of the view that it should "be right" in two to three weeks. He also felt that the other injuries would soon subside. However, the evidence given by the plaintiff was to the effect that the injuries had much longer term consequences than was originally hoped. The trial judge described the plaintiff's evidence as quite straightforward and said the plaintiff was an honest witness who was not exaggerating. In outline the plaintiff's evidence was that for approximately four to six weeks after the accident he was unable to use his left hand at all. It was during this period that he was wearing the boxing glove bandage on that hand. Although he was right handed, there were many aspects of his practice requiring the use of the left hand, so that during this period his ability to practice was very substantially interfered with. For six weeks after the removal of the bandage the left hand remained very swollen, so that he was still unable to use it. After that time he 2 UNREPORTED JUDGMENTS gradually became able to do most of what he had done before, but found there were a number of things he never recovered full ability to do. In answer to questions asked by the trial judge the plaintiff mentioned that these things included examination of patients by percussion, the insertion of intravenous drips, pap smears, and the delivery of babies. His evidence was that these inabilities were caused by a combination of a feeling of weakness in the left hand and nervousness and a lack of confidence in his ability to use the hand accurately and efficiently. Overall, the plaintiffs evidence was that in the years following the accident not only did he find himself limited in the things he could actually do in the course of his practice, the number of patients he was able to see in his surgery dropped significantly. In fairly detailed evidence the plaintiff explained that in the earlier period he was only able to work for very short periods in his surgery, that these gradually lengthened, but never reached his pre-injury level, although by about August 1984 he found he could work a full day provided he had a rest in the middle of the day. Even at this last stage he was only capable of seeing fewer patients than before the accident, the number having fallen by roughly one third. The plaintiff gave evidence that it was not only the problems with his left hand which affected him in his practice. He had continuing problems in his chest area and back which limited his ability in the course of examining patients, to bend, stoop, turn, sit down, all of which he found he had to do more slowly than before and which caused him some pain. The plaintiff also gave evidence of the effect the injuries had on his family and social life. In support of his claim that his ability to earn had been significantly affected by his injuries the plaintiff tendered his income tax returns for the years ending 30 June 1981 to 1990. Very little explanation of the figures in these returns was given in evidence and it is difficult to draw any conclusions from them although they showed with reasonable clearness a distinct drop in the gross professional fees earned by the plaintiff in the years ending 30 June 1983 and 1984. No attack was made at the trial upon the validity or accuracy of the figures; the problem with them was that only limited use could be made of them. The trial judge in his reasons briefly summarised the evidence and, given his acceptance of the plaintiff as an honest witness, that summary seems to me to have been quite an accurate one. He allowed $35,000 for past general damages. As for the future, he regarded the plaintiff's condition as stable, he mentioned his fear of cars and his loss of confidence as matters additional to the residual effect of the injuries, together with the fact that he was forty-seven at the time of trial, and allowed $15,000 for future general damages. In regard to economic loss, the judge commented on the difficulty, in light of the evidence before him, of making any mathematical approach. For the eight years from the accident to the trial he allowed $20, 000, and then calculated that the interest for this period, at 7.5 per cent, should be $12,000. For the future, he assessed a figure of $30,000 as a "cushion". The relevant figures were thus: General damages for pain and suffering $ 50,000 Interest on general damages 21,000 Past economic loss 20,000 Interest on past economic loss 12,000 Future economic loss 30,000 Total for which judgment entered $133,000 URJ DARR v PAPALKAR (Priestley JA) 3 The first ground of appeal argued by the defendant concerned the trial judge's assessment of past economic loss. The submission was that counsel for the plaintiff had made it quite clear both in opening the case to his Honour and also in the course of the leading of evidence, that the plaintiff's claim for past economic loss was limited to the closed period of two years immediately after the accident. Material in the appeal papers shows that plaintiff's counsel did refer to such a closed period and that the reason for his doing so was that the possibility of basing calculations of loss upon reasonably reliable figures was greatest in respect of that period. The submission for the defendant continued by claiming that the plaintiff, both by what was said in opening and in the presentation of evidence had not sought damages for the later six years of the eight year period between accident and trial. The defendant then submitted that the approach taken by the plaintiff at trial involved an inconsistency in that the plaintiff did not claim loss for the six year period immediately before the trial and yet made a claim for future loss from the date of the trial. Once the defendant's submission reached this point, a double attack was made upon what the trial judge had done. First it was said he had ignored the way the trial was conducted by assessing damages for the plaintiff's past economic loss in regard to the whole eight year period, and second, that he had not revealed in his reasons how he worked out the $20,000 figure. There were some other criticisms of the way this figure was assessed, which I will mention later. At first, there seemed to be considerable force in this ground of the defendant's appeal. However, when all the materials before the trial judge were examined, and related to what the judge said in his perhaps too cryptic reasons for judgment, those reasons became broadly understandable and the defendant's criticism, to my mind, lost most of its persuasion. There is a passage towards the beginning of the evidence in which counsel for the plaintiff was explaining to the trial judge that the reason for the specific claim in regard to what was referred to as the closed period of 1983, 1984 was obvious when the income tax figures were looked at. They showed a clear drop in gross professional fees for those years. Then in 1985 the figures were back above the 1982 level. Counsel said however that the plaintiff "will tell your Honour he continued to suffer problems and still does but in terms of its palpable revenue effect it's the claims in relation to that period". In the course of the plaintiff's later evidence he made the assertions I have outlined above, partly in answer to direct questions by the judge, which clearly related to the whole eight year period (and of course provided indications of the future after trial). Having read all the materials, it seems to me relatively clear that what happened was that the judge did not get any particular help in regard to the closed period from the income tax figures but simply took the view that (i) the figures did show at least that during that two year period there was a drop in gross income which in light of the plaintiff's evidence accepted by the trial judge was attributable to the injuries from the accident; (ii) that the continuing effect of the plaintiff's injuries had an effect on his earning ability during the whole eight year period; (iii) that some indication of the effect on his earning ability during that period was given by the reduction in the hours he was able to work and the number of patients that he saw, all this resulting in the judge's being satisfied that the plaintiff had suffered economic loss during the whole period which it was the judge's obligation to quantify, as best he could, on the available materials. 4 UNREPORTED JUDGMENTS In short, I do not think that what was said by plaintiff's counsel in opening concerning the closed two year period immediately after the accident prevented the plaintiff from claiming or the judge from awarding an amount for economic loss during the eight year period between accident and trial; it further seems to me that if there had been any misconception on this matter caused to defendant's counsel by the plaintiff's opening it must have been dispelled by what happened in the course of the hearing. On this footing, it seems to me that what was said in the trial judge's reasons concerning this matter sufficiently made known to the parties the basis upon which he was arriving at the figure he assessed for economic loss to trial. On the basis of considerations (i), (ii) and (iii) mentioned above, that assessment was necessarily of a fairly broad kind but, given the judge's views concerning the truthfulness of the plaintiff, the approach seems to me to have been sensible and to have arrived st a relatively moderate result. The other criticisms of the judge's conclusion on this matter, which I said above I would mention later, were that he did not give sufficient weight to two things which occurred shortly after the accident which would have affected his income during the period from accident to trial. One was that for a short time he went to practice in another area and the other was the closing of certain facilities at the local hospital. These matters would undoubtedly have had an effect on his earnings for part of the period, but the trial judge seems to me to have taken the first one specifically into account and although he made no mention of the other, in view of his reasons having been delivered immediately at the close of the evidence it seems unlikely he did not have it in mind, and most importantly, it does not seem to me that the two matters taken together could possibly have accounted for the whole of the plaintiffs loss of income following the accident, this observation once more being made on the basis of the trial judge's acceptance of what the plaintiff told him about how the accident had affected his ability to carry on his practice. It seems to me to follow from the acceptance of the plaintiff's account that there must have been a loss of the order of that assessed by the trial judge. In my opinion therefore this ground of appeal fails. In regard to future economic loss, the defendant again said that the trial judge's reasons gave no clear indication of how he arrived at the $30,000 figure, and referred to some matters to which the judge allegedly gave insufficient weight, such as the possibility the plaintiff might not work to age sixty-five. Although there is some force in these submissions, I do not think it is sufficient to show the judge's assessment should be interfered with. First there are the factors I have mentioned in regard to pre-trial economic loss, particularly that summarised in consideration (iii). Second, there are the matters mentioned by Lloyd-Jones DCJ in his discussion of the "cushion": "... loss of confidence in the doctor of course is a substantial set back and understandable in his circumstances I feel because largely of the weakness in the left hand. They are, as I have already said, quite serious problems for a doctor even though for some citizens the effect may be small. His car use is limited somewhat which is a factor to take into account. Evidence says that he has had from time to time required people to attend him rather than attend when called. It's clear on the probabilities that his overall situation will not improve over his future working life. There are of course other areas of medicine available but he is a GP and from time to time will be confronted and continue to be confronted with situations I am satisfied, which he has to refer to other practitioners and thereby lose income. It may well be also that he will not work to the age of URJ DARR v PAPALKAR (Priestley JA) 5 sixty-five but as I have said the evidence there is vague and because of his problems and the fact that he has to refer patients from time to time in the future to other doctors, he is vulnerable in the general area of competition with other local practitioners because word of that will inevitably get around if it has not already done so." This passage seems to me to be a reasonable summary (given his Honour's acceptance of the plaintiffs evidence) of the plaintiffs situation. When this is taken into account with the first matter mentioned, the figure of $30,000 arrived at by the judge is in my opinion a quite justifiable one. On general damages it was submitted for the defendant that deficiencies and discrepancies in the medical evidence made the plaintiff's case an unsatisfactory one. The defendant relied on differences between the evidence of Dr Isaacs and Dr O' Donovan (who was qualified for the defendant). However, as the trial judge preferred the former's evidence to that of the latter, and as there was no logical or persuasive reason why he should not do so, the differences do not help the defendant in the appeal. More relevantly, various matters stated by the plaintiff in evidence were not referred to in Dr Isaacs' reports, in circumstances where, if they happened as the plaintiff said, a note of them would be expected. In the circumstances of this case, however, where the plaintiff is a medical practitioner, and entitled to express medical opinions even in his own case, and where his oral evidence was accepted (in circumstances in which it was proper for the judge to do so if impressed by the plaintiff's credibility) the absence of the expected references in Dr Isaacs' reports loses the significance it might otherwise have had. There is left evidence upon which the two figures stated by the judge for general damages seem to me to be within the appropriate discretionary range. At the appeal the defendant sought to rely on a point not raised in the notice of appeal. This was that as the plaintiff's statement of claim had not claimed interest, it was wrong for the judge to have awarded it. Leave was sought to argue this point. The point was argued, the court allowing this to be done without then deciding whether to grant leave. It was agreed between the parties that if leave were granted, the plaintiff should be allowed to amend the statement of claim to claim interest. In my opinion, leave to amend the notice of appeal should be refused. It seems clear from the appeal papers that at the trial it was taken for granted that it was open to the judge to award interest, and that it did not occur to the defendant to object to the judge's doing so, on the grounds of the defect in the plaintiffs claim. If objection were to be taken to allowance of interest, it should have been taken when the judge delivered judgment. Had the objection then been taken, the plaintiff would undoubtedly have then sought and been granted leave to amend the statement of claim. I do not think it appropriate to allow the defendant to take the point at this stage. Even if leave were granted, the court would then permit the plaintiff to amend the statement of claim at this stage, and it seems virtually inevitable that the interest would then be allowed in this court. Nothing said by defendant's counsel led me to think that any other result would be reached. A different submission concerning interest was made, limited to that awarded on the past general damages (that is, on $35,000 at 7.5%). The plaintiff conceded that as a result of MBP v Gogic (1991) 171 CLR 657 and subsequent decisions in this court, the appropriate interest rate to be applied to the eight year period was 2%. This means that the figure of $21,000 should have been $5,600. 6 UNREPORTED JUDGMENTS Although the defendant's appeal fails, in my opinion, in all respects save the last mentioned, in order to correct that aspect of the figures it will be necessary to set aside the judgment and substitute judgment for $117,600. Because of the substantially mechanical nature of this alteration to the judgment, I do not think it should have any consequences in costs. I therefore propose that the following orders be made: (1) Appeal allowed. (2) Judgment set aside; in place of it, judgment for $117,600 should be entered, to date from 6 December 1990. (3) Appellant to bear respondent's costs of appeal. Sheller JA I agree with the reasons and orders proposed by Priestley JA. ORDERS 1. Appeal allowed. 2. Judgment set aside; in place of it, judgment for $117,600 as from 6 December 1990. 3. Appellant to bear respondent's costs of appeal. Counsel: Appellant: GR PETTY Respondent: MJ SLATTERY Solicitors: Appellant: GOVERNMENT INSURANCE OFFICE Respondent: WJ ENRIGHT and SON