GIO vy HAMAD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY (1); PRIESTLEY (2) and SHELLER (3) JJA 1 April 1992, 16 April 1992 [1992] NSWCA 91 APPEAL — DAMAGES APPEAL — damages — quantum — respondent injures back in motor accident — subsequent back incident — appellant argues; (1) medical opinion evidence did not consider effect of subsequent incident leaving unrebutted inference it was independent cause of some injuries; (2) unsafe to rely on medical evidence not based on facts substantially proved; (3) wrong considerations taken into account in assessing (i) general damages, and (ii), past and future economic loss; (4) statutory amendment precluded interest on past general damages. Held: (1) evidence insufficient to draw such inference; (2) medical evidence sufficiently clear; (3) no mistake in arriving at reasonable damages awards; (4) mistake as to interest allowance — appeal upheld only to extent necessary to correct mistake about interest. ORDERS 1. Appeal upheld. 2. Judgment set aside; in its place judgment entered for $254,185.84 as from 12 December 1989. 3. Appellant to bear respondent's costs. Mahoney JA I agree with the judgment of Priestley JA. Priestley JA This appeal by the GIO, the defendant below, against the amount ofa District Court judgment for the plaintiff for personal injuries for which the GIO admitted liability, raises one principal, and various subsidiary, points. The plaintiff was injured in a motor car accident on 4 November 1985. He was then twenty-five. From the time he had come to Australia nearly five years before he had been in regular work with the one employer, Union Carbide. After the accident, he continued to work for that employer, but because of physical problems became unable to do the work and was dismissed in 1987. The plaintiff's damages claim was heard by her Honour Acting Judge Beazley on 16 and 17 November 1989. On 22 December 1989 her Honour published reasons for judgment and awarded the plaintiff $257.935.84 arrived at as follows: 1. General Damages $40,000.00 2. Interest on past general damages (7.596 for $3,750.00 approximately four years on $12,500) 3. Past economic loss $42,000.00 4. Interest on past economic loss $12,600.00 5. Future economic loss $150,000.00 6. Medical expenses $9,585.84 The principal point relied on by the defendant in the appeal depends upon the significance to be attached to facts stated in a document (Ex D) tendered on behalf of the plaintiff in the course of the defendant's case. The defendant now attaches much greater significance to Ex D than it did at the trial. To see how this has happened I need to say something about the way the trial was conducted by the parties. 2 UNREPORTED JUDGMENTS The main issue was the genuineness of the plaintiff's symptoms attributed by him to the accident. Reports from a number of doctors were tendered in the plaintiff's case supporting the conclusion that he was suffering from a continuing lumbar injury and also from a depressive state. For the defendant reports from three doctors were tendered. In broad terms these doctors were of opinion that the physical evidence did not support the plaintiff's claimed symptoms, that he was not fully genuine in his reporting of those symptoms and that the damage he had suffered as a result of the accident was considerably less than he claimed. Of the various doctors who reported on the plaintiff only two were called as witnesses at the trial, Dr Seaton in the plaintiff's case, and Dr Slezak in the defendant's case. The trial judge formed the view that the plaintiff was truthful. She accepted the opinions of the doctors whose reports had been tendered in the plaintiff's case. In particular she thought that a psychiatrist's report satisfactorily explained why it was that the plaintiff appeared to the various orthopaedic experts in the way that he did. She also accepted the opinions of Dr Seaton. The matter upon which the defendant now relies was raised in address at the trial and mentioned by her Honour in her reasons. What had happened was that in the defendant's case Mr P. McDonald had been called as a witness, he being the employee relations manager for Union Carbide. He gave some particulars of the plaintiff's work history after the accident. In cross-examination, counsel for the plaintiff showed him a document of the employer's which Mr McDonald identified as having been signed by him. This document was then tendered. It recorded an incident on 3 December 1986 when the plaintiff, in bending down and picking up a package at work, "felt a click and pain in the back". The rest of the document narrated the sequel of this incident which was that the plaintiff continued working on selected duties and was given medical certificates that he should continue on selected duties until 3 January 1987. He took a day off on 16 December. After Mr McDonald finished his evidence Dr Slezak was called in the defendant's case. In his report (Ex 2(6) dated 23 June 1989) there was no reference to the incident of 3 December. In examination-in-chief counsel for the defendant did not bring the incident to Dr Slezak's attention, nor was it referred to in his cross-examination. Nor had the incident been referred to in the reports of any of the other medical practitioners or the oral evidence of Dr Seaton. Following the admission into evidence of Ex D no application was made by either side to recall Dr Seaton or to seek to cross-examine any of the doctors whose reports were in evidence. The trial judge recorded in her reasons that in address at the trial, defendant's counsel sought to use the material in Ex D as evidence of another injury, the effects of which ought not be the defendant's responsibility. The judge was of the view that the material in the exhibit was insufficient to base a finding of a new injury accounting for all the plaintiff's subsequent problems. In the appeal, defendant's counsel renewed the submission that had been made below and broadened it. The broader form of the submission was that since the opinions of all the doctors had, at least to some extent, been directed to the question whether the accident of 4 November 1985 was responsible for the plaintiff's later problems, and since the incident of 3 December 1986 was obviously important in considering this question, and since none of the doctors had taken that incident into account, none of their opinions could be relied on. It URJ GIO v HAMAD (Priestley JA) 3 was said that the court could not act on any medical opinion evidence unless the history upon which the opinions were expressed substantially corresponded with that proved in evidence. The submission for the defendant depended factually upon the evidence of the incident of 3 December 1986 being sufficient to found an inference that it was an independent cause of some of the injuries of which the plaintiff was complaining. If that were accepted, it was submitted for the defendant, it followed that there had been an onus on the plaintiff to produce evidence displacing the inference. This not having been done, the earlier submitted consequence followed concerning the inappropriateness of the court relying on any of the medical opinion evidence; the result was, according to the submission, that there must be a new trial. (Counsel recognised that as a matter of logic the consequence of the submission might be that judgment should be entered for the defendant, but did not press the submission to that length.) The submission, in my opinion, fails in both its narrower and broader versions because it does not seem to me that Ex D is, of itself, and in light of some other evidence I will mention, sufficient to justify the inference which the defendant says should be drawn from it. The other evidence I have in mind is a passage in one of Dr Seaton's reports (to which counsel for the defendant properly drew attention). Although, as I said earlier, no doctor referred to the incident of 3 December 1986, Dr Seaton, in his report of 17 January 1989, recorded that the plaintiff had told him that after the accident "he went back to work and remained working for a few weeks and received physiotherapy... His back condition soon worsened, because of his labouring duties, but fortunately his neck improved. His complaint, when seen by me, was of low back pain... " Dr Seaton thus treated the worsening of the plaintiffs back condition because of his labouring duties at work after the accident as part of the consequences of the accident itself. This point was taken up by counsel for the defendant at the start of her cross-examination of Dr Seaton. Dr Seaton said that the conclusion that the plaintiff's back condition had worsened because of his labouring duties was not his own conclusion but that of the plaintiff which he found consistent. The topic was left at that. When the material in Ex D is considered in light of the evidence I have just mentioned, it seems to me that what got into evidence concerning the incident of 3 December 1986 was too slight to warrant the inference that is now sought to be drawn from it. The conduct of the trial is also relevant to consideration of this question on appeal. The matter was taken up in a very general way by reference to Dr Seaton's report in the part of his cross-examination that I have referred to. It was left in an inconclusive state. What the parties were substantially contesting at the trial was the genuineness of the plaintiff's complaints. The effect of subsequent incidents upon the causal connection between the accident and the damages claimed by the plaintiff was not, on my reading of the evidence, ever more an issue between the parties than was indicated in that part of the cross-examination of Dr Seaton that I have already mentioned. In the circumstances, the attempt by defendant's counsel to rely upon Ex D in address amounted to too little, too late. In my opinion, the defendant's new trial submission fails. Another general submission made for the defendant was that upon a careful reading of Dr Seaton's evidence, it was clear that it had been unsafe for the trial judge to rely upon that evidence, as she did, as supporting the plaintiff's case. It was said, with some justification, that in cross-examination Dr Seaton appeared to retreat from the opinion that the major physical matter from which the plaintiff 4 UNREPORTED JUDGMENTS still claimed to be suffering at the time of the trial, the lower back pain, was caused by the accident. However, the submission also had to contend with the evidence given by Dr Seaton in re-examination. The defendant's explanation of this evidence was that the references in it to "lesion", a word introduced by plaintiff's counsel were really inexplicable and deprived the evidence of the effect it would otherwise have had of directly connecting, in Dr Seaton's opinion, the accident and the continuing back complaint. Again, there is some force in the submission, but it seems to me that the final sentence in the re-examination sufficiently clears up whatever confusion there was before stemming from the word "lesion", because there think Dr Seaton made it reasonably plain that he was under-standing counsel as referring to the disc protrusion in the lower back which in his opinion was caused by the accident, at the very least in the sense that any problem the plaintiff had at that level of his back before the accident was non symptomatic and the accident caused a symptomatic protrusion. The remaining points taken by the defendant related to the particular components of the overall judgment earlier set out. The first of these was that general damages at $40,000 was unreasonably high. Her Honour seems to me to have taken into account all relevant matters without any misconceptions as to the facts, and the figure she arrived at for general damages does not strike me as being outside the acceptable range. It was next said that in dealing with past economic loss her Honour simply did not take into account the fact, as admitted by the plaintiff, that he could do light work in the early part of 1986. However, when the rest of the evidence is taken into account and particularly bearing in mind the plaintiff's limited English, skills and opportunity once his back was injured, this criticism does not seem to me to have any substantial weight. I do not see any error in the trial judge's reasoning in regard to this item. The same general comments apply to the next submission, which dealt with future economic loss. Bearing in mind the particular circumstances of the plaintiff, her Honour's assessment of future economic loss seems to me not only to be within the reasonable range, but realistic. The final point is one on which the plaintiff concedes the defendant must succeed. This relates to the amount of $3,750 allowed as interest on past general damages. It was agreed by the parties that statutory amendments were operative to regulate the present case which precluded the allowance of such interest. The defendant sensibly recognised that this was a matter which could have been corrected under the slip rule so that, if the appeal were otherwise to fail, the correction of this item would have no consequences in costs. Because of the mistake about interest, it is necessary to set aside the judgment that was entered and substitute for it, operative at the same date, judgment for $254,185.84. The appeal, subject to the correction of the judgment, fails. In my opinion the formal orders that should be made are: 1. Appeal upheld. 2. Judgment set aside; in its place judgment to be entered for $254,185.84, operative from 22 December 1989. 3. Appellant to bear the respondent's costs. Sheller JA I agree with the judgment of Priestley JA. 1. Appeal upheld. 2. Judgment set aside; in its place judgment entered for $254,185.84 as from 12 December 1989. 3. Appellant to bear respondent's costs. URJ GIO v HAMAD (Sheller JA) Counsel for the appellant: L King Solicitors for the appellant: Government Insurance Office Counsel for the respondent: PC Semmler/B Rowe Solicitors for the respondent: Cameron Gillingham Boyd