ELLISON vy GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KirBY P, HANDLEY and Cripps JJA 20 August 1992, 10 September 1992 [1992] NSWCA 64 DAMAGES — motor vehicle accident — injury to back, shoulder and neck of roof and guttering plumber — trial judge limits damages to 12 months after accident — held: Unanimous medical evidence does not support finding judgment reassessed and increased — no issue of principle. DAMAGES — motor vehicle accident — injuries to back, neck and shoulder of roof and guttering plumber — plaintiff does not return to work — trial judge (McLachlan DCJ) awards $36,200 upon the basis of (a) a conclusion that disabilities after about twelve months following the accident were not the result of the accident; and (b) "arbitrary" reduction of out of pocket expenses — held: (Cripps JA; Kirby P and Handley JA concurring): (1) The trial judge's assessment was not supported by the evidence of either the orthopaedic or psychiatric specialists whose reports were tendered; (2) The judgment should be set aside and, upon a reassessment, judgment in the sum of $86,806 substituted, including full out of pockets. Kirby P I agree with Cripps JA. Handley JA I agree with Cripps JA. Cripps JA This is an appeal against the decision of McLachlan DCJ published on9 October 1991 awarding the sum of $36,200 to the plaintiff as damages for injuries received in a motor car accident on 10 March 1986. The day following the collision the plaintiff went to the out patients' department of the local hospital. He returned on 18th and 21st March. He complained of pain in the neck, back and shoulders. He was referred to an orthopaedic surgeon, Dr Caspary, who treated him over the succeeding three years. He manipulated his cervical and lumbar spine under anaesthetic in April 1986. He manipulated his right shoulder in May 1987 and his left shoulder in October 1989. In April 1987 Dr Caspary was of the opinion that although he thought the plaintiffs symptoms would improve, he did not think they would resolve completely. It is unnecessary to set out the details of Dr Caspary's reports. It is clear that he accepted that the plaintiff's symptoms were the result of the motor vehicle accident. In his final report, he noted that, in his opinion, the plaintiff's neck and shoulder condition had largely resolved but that, by reason of his back condition, he would be permanently unfit for heavy work, including his preinjury occupation. The plaintiff also saw other medical practitioners who prescribed treatment for his back and shoulder condition. His local general practitioner, Dr Barros, also referred him to Dr Tsang, a psychiatrist, for treatment. Dr Tsang was of the opinion that he was suffering from an "adjustment disorder" as a result of a motor accident. An "adjustment disorder" is described as a maladaptive reaction to an identifiable "psychosocial stressor" - in this case, the motor vehicle accident. Dr Tsang is of the opinion that he was seriously depressed when he first saw him in June 1988 but that he responded well to treatment and, by September 2 UNREPORTED JUDGMENTS 1990, his problems had mostly gone - the only "stressor" remaining being the pending court case. He was of the that once the court case was over, the plaintiff would adjust satisfactorily. The opinions of the plaintiff's treating doctors were supported by opinions of other doctors who saw him for the purposes of the litigation. Dr Benanzio and Dr Henke were both of the opinion that his physical complaints were caused by the accident and that he remained, as at 1990, unfit for his preaccident work by reason of pain in the lower back. The plaintiffs condition has been tragically complicated by the fact that in 1991 he was forced to undergo an operation in an attempt to remove a cancerous growth in his stomach. The operation was not successful. His prognosis and life expectancy were not explored during the hearing beyond a passing reference in the report of one of the doctors who saw him on behalf of the defendant and a statement by the plaintiff to the effect that some other doctor had said his life expectancy was reduced to a few more years in the future. The reason why the matter was not explored in any detail was that the plaintiff did not claim, and never had claimed, that his stomach condition was the result of the accident. He made no claim for economic loss beyond a period of four and a half to five years after his accident. Furthermore, although he claimed that he was entitled to general damages for pain and suffering arising from the accident, he accepted that his reduced life expectancy did not entitle him to an award for general damages beyond 1995. Although some attempt was made before the Court of Appeal to suggest that the plaintiff may have had symptoms referable to stomach cancer shortly after the accident, there is no material before the Court that suggests that up to the time when he was operated on in 1991 the development in 1987, 1988 or 1989, if that is what was happening, of a tumour in his stomach would have affected his working capacity. The plaintiff was examined by four doctors nominated by the defendant. It is to be noted that all the defendant's doctors considered that most of the plaintiff's symptoms were the result of the motor vehicle accident. Dr McEwin and Dr Thwaites were of the opinion that he had suffered soft tissue damage to parts of his back and that he was unable to undertake his pre-accident work for some time. Dr McEwin, who saw him in 1991, was of the opinion that his complaints should have resolved themselves well before the date of hearing but he appeared to accept the plaintiff's complaints were genuine and that he was still having trouble with his back. Dr McEwin considered his unfitness for work to be due to the cancer. Dr Thwaites and Dr Hession accepted that the plaintiff had pain in the back and that he was not fit for his previous occupation. They were of the opinion that the effects of the accident had ceased well before the hearing of the action. Dr Thwaites was of the opinion that the plaintiffs persistent symptoms of pain in the back and neck were due "more to his constitutional osteoarthrosis" which was not caused by the accident. However, Dr Thwaites thought the accident had initiated symptoms. Dr Hession thought the plaintiff's present pain was attributable to degenerative spondylosis which predated the motor accident although, as he said, "it is likely his injuries accelerated his condition". He, like Dr Thwaites, thought that the aggravating effects of the accident should have ceased. Dr Thwaites saw no connection between the plaintiff's complaints of pain in his shoulders and the accident. That was because, I think, Dr Thwaites was unaware of the history the plaintiff had given when he first attended hospital after the accident. If not, there is no explanation by Dr Thwaites as to why, on the assumption that the plaintiff had pain in his shoulders immediately after the UARUISON v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Cripps JAB accident, he was of the opinion that the motor vehicle accident did not cause that pain. The plaintiff was also seen by Dr Maguire, a psychiatrist, who was of the opinion that the plaintiff was suffering from an "adjustment disorder" which, I would have thought, contrary to the view of the learned trial judge, he attributed to the accident. In common with the other psychiatrists whose evidence was tendered, Dr Maguire did not think the plaintiff was suffering from a psychiatric disorder. The learned trial judge said: "The conclusion I reach is that the plaintiff did suffer soft tissue injuries which aggravated a preexisting condition or conditions, and that he has been fit for some work since about 1987. Due to the personality he is, and his other problems, he has not returned to any form of work. I cannot conclude that any loss since about twelve months after the accident is the result of his accident, and I entertain considerable doubt as to the effect of the disc problem, referred to by Dr Caspary, and as to whether it was caused in the accident". The defendant conceded that the plaintiff spent $7,600 for medical treatment etc. However, it did not concede that all expenditure was relevantly related to the accident. The learned trial judge made an "arbitrary assessment" of the out of pocket expenses and awarded $5,000. Further, he allowed the sum of $12,000 for past economic loss that being the amount the plaintiff said he had earned in the year preceding the accident. Upon the findings referred to above, he awarded him the sum of $12,000 general damages. He allowed interest on the amount assigned for past economic loss and none for general damages. The plaintiff was born on 6 January 1937. He came to Australia from Argentina in 1974. From the time he arrived in Australia until his motor accident he had been in constant employment. He had completed trade courses after he came to Australia and the learned judge found he spoke English fairly well and gave the appearance of being well educated. He commenced his preinjury employment as a roof plumber in 1979. In my opinion, the learned trial judge erred in finding that the consequences of the plaintiffs accident were substantially resolved within twelve months. There was no evidence to support such a finding. I have already referred to the medical evidence. No doctor gave oral evidence. I do not know why the learned trial judge rejected the evidence of the plaintiffs treating doctors. So far as the plaintiff's psychological problems are concerned, there was no conflict between the plaintiffs doctors and the psychiatrist retained by the defendant. With respect to what I might call the orthopaedic injuries, it was not disputed that the plaintiff had the symptoms he complained of. The defendant's doctors thought they should have resolved within approximately three or four years after the accident and the plaintiff's doctors thought they would continue somewhat longer. The conflict was not very important bearing in mind that the plaintiff's stomach cancer precluded him, as he readily conceded, from making any claim for loss of earning capacity beyond the period of about four and a half years. I do not think it can be said that the learned judge disbelieved the plaintiff. His finding that the plaintiff had not returned to any form of work due to "the personality he is, and his other problems" is not easy to understand. I cannot think the learned judge was referring to the plaintiff's cancer condition but if he was he erred because the only reliable evidence on the subject was to the effect that the plaintiff's cancer condition had grievously incapacitated him only recently. As I have said, this matter was not explored in evidence for the very good reason that the plaintiff was not making a claim for economic loss beyond the period of his 4 UNREPORTED JUDGMENTS operation for stomach cancer in 1991 for damages of loss of earning capacity. If he was referring to his psychological problems, ie the "adjustment disorder" he also erred because on the evidence those problems were caused by the accident. It would seem to me, with respect, that the only real dispute in the case was whether the plaintiff's pain in the lower back at the date of trial, and which precluded him from undertaking his preaccident employment, was the result of the accident or whether it would have happened in any event. As I have said, that had no consequence so far as his claim for economic loss was concerned because his claim was limited to a period of about four and a half years up to the time of debilitating symptoms consequent upon his stomach cancer and the operation. It is agreed that the plaintiff's preinjury earning capacity was $165 nett per week. In my opinion, he was entitled to compensation for loss of earning capacity for four and a half years which, on the agreed figures amounts to $38,610. I can see no reason why he should not receive all the agreed out of pocket expenses. Accordingly, his out of pocket expenses are assessed at $7,600. Although the plaintiff made no claim for loss of earning capacity beyond 1991, the learned judge, I think, ought to have concluded that he would suffer some pain in his back for some period thereafter. Taking into account all those circumstances and also making the assumption that his life expectancy is seriously reduced (and about which, as I have said, the evidence is very thin), I consider that he should have been awarded damages for pain and suffering for a period up to 1995. In these circumstances, I think he should have been awarded an amount of $25,000 for pain and suffering, $20,000 of which should have been referable to the period to the date of trial. Accordingly, in my opinion, the learned trial judge should have entered judgment for $86,806.00 made up as follows: Economic loss $38,610.00 8% interest on $38,610 15,596.00 Out of pocket expenses 7,600.00 General damages 25,000.00 $86,806.00 I would propose, therefore, that the verdict and judgment for the plaintiff be set aside and that substituted therefor a verdict and judgment in the sum of $86,806.00. The respondent to pay the appellant's costs of the appeal but to have in respect thereof a Certificate under the Suitor's Fund Act 1951. 1. Appeal allowed; 2. Verdict and judgment for the plaintiff entered by the District Court of New South Wales (His Honour Judge McLachlan) on 9 October 1992 set aside; 3. In lieu thereof, substitute for the same a verdict and judgment in favour of the plaintiff in the sum of $86,806; and 4. The respondent to pay the appellant's costs of the appeal but to have, in respect thereof, if so qualified, a certificate under the Suitors' Fund Act 1951. Counsel for Appellant: GR Graham Solicitor for Appellant: Snelgrove and Partners Counsel for Respondent: RC Tonner URRUISON v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Cripps JAB Solicitor for Respondent: Solicitor for the Government Insurance Office of New South Wales