VINCENCIO vy GOVERNMENT INSURANCE OFFICE OF NSW SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, MEAGHER and HANDLEY JJA 1 November 1993, 1 November 1993 [1993] NSWCA 281 Damages — Inadequate — no question of principle Clarke JA This is an appeal from a judgment of Judge Karpin given on 11 October 1991. In that judgment her Honour assessed the damages for which the respondent was admittedly liable in the sum of $15,172. That figure was divided between general damages in the sum of $14,500 and special damages being $672. The appellant complains that the damages are inadequate. In particular the complaint is made that there should have been an allowance for past economic loss between the accident and 1989 and that the award for general damages was grossly inadequate. The case was a difficult one involving a relatively young woman who had been born in Chile in 1954. She had arrived in Australia aged twenty-four years in 1979, having had what seems to have been a childhood which could not be described as particularly happy. She had had, so the history would seem and the doctor's reports reveal, a difficult relationship with her parents and with her father in particular. In 1979 she married but shortly thereafter became pregnant to another man. An abortion took place and following this she attempted suicide and spent a week in hospital. There appears also to have been another unsuccessful suicide attempt. In 1980 she was divorced and she became pregnant again to the person with whom she had formed a relationship shortly after her marriage. On this occasion a daughter Cindy was born and that event occurred on 21 February 1981. It would appear, although it cannot be described as clear, that she did not work for two or three years after the birth of her daughter, but in 1983 she had what she described as two nervous breakdowns. These upsets resulted from her difficult relationship with the father of the child. Her employment history was somewhat chequered and the evidence relating to this is also somewhat vague. It would seem that in 1984 she worked for a short period - it may have been a few weeks or a few months - with Helio Plastics and she did not work again until she commenced her employment with Utilux in September 1985. She was employed with that company when she was involved in an accident which led to her claim. That accident occurred on 13 December 1985 and immediately following it she worked until 20 December when the factory closed down for Christmas. She saw a Dr Hassan on 16 December and he treated her from that time until 7 April, having referred her to Dr William Lyons, an orthopaedic surgeon in the meantime. He thought she had suffered from soft tissue injuries to her neck and upper thoracic spine. She did not return to work after the Christmas vacation. The impression is created in the evidence she had been unable to do so, but it soon became clear that she did not resume work because the employer had no work for her. She had, I must emphasise, worked as a casual and apparently the work which she had previously done was no longer available. Despite that fact 2 UNREPORTED JUDGMENTS she made no attempt to find other work and although there is some doubt about this from the evidence, it is most likely that she has not worked at all since 20 December 1985, although there was possibly one occasion when she did work for a short time. In February 1986, while still seeing Dr Hassan, she was examined by Dr Stacey at the Lakemba Medical Centre, and he prescribed some treatment and was expecting her to return for a second instalment, but in the end she did not turn up. In June 1989, apparently as a result of her moving home, she consulted Dr Lall who gave a report that she complained of stiffness in the neck, and he thought that it was possible this could have been the result of the accident. He also gave a certificate dated 14 March 1990 in which he said: "She has also had counselling for anxiety and stress related to her personal life. At one time she was treated for depression resulting from emotional stress from her domestic situation." She also consulted, somewhat later, a Dr Hegby who referred her to Dr Subhas, a psychiatrist. She did not tender any report from that doctor but the respondent tendered a report which he had written to Dr Hegby and Dr Subhas' notes. Apart from that the appellant was seen by a number of orthopaedic surgeons and a psychiatrist, Dr Greenberg. All of these were medico-legal consultations. Dr Greenberg thought she had suffered from a depressive condition secondary to her injury sustained in the accident. He therefore concluded that the accident was the cause of her depressive condition. The evidence from the orthopaedic surgeon was not conclusive but tended to support the conclusion that she had suffered from some soft tissue injuries in the accident, which disabled her at varying times to varying extents. The respondent had her seen by Dr Roberts, a psychiatrist, who thought she was psychotic; in fact dangerously so, and he denied the existence of any nexus between the accident and her psychiatric problems. She was also seen by a Professor Fields, a professor of surgery, who thought she had had some soft tissue injuries which had gradually recovered, and he noted: "She does not appear to be motivated to return to the workforce and she has a number of personal problems, with a nine year old child to look after. " Dr Power was another orthopaedic surgeon who saw her and he thought her complaints had no organic basis. There was, in the event, a considerable dispute between the specialists of both disciplines called on one side or the other. The appellant herself had been, as it would seem from a reading of her Honour's judgment, an unsatisfactory witness and she had, in the course of her cross-examination, conceded that she had worked under a false name for a period before the accident in order to draw her salary and social service benefits. In assessing the claim her Honour, fairly clearly, was affected by what she felt was the lack of credibility of the appellant. She also thought: "Much more reliance could be placed on the notes of Dr Subhas than the complaints made by (sic) Dr Greenberg which were made with this litigation in view." That conclusion of her Honour was understandable in all the circumstances, bearing in mind that the complaints of Dr Subhas were made in the context that she was seeking treatment. Mr Levy, who appeared for the appellant, and who has done a sterling job, criticises a number of her Honour's conclusions. The first one he criticised was a statement that her Honour made that Dr Subhas' notes did not disclose complaints or problems flowing from the motor vehicle accident. On a narrow URJ VINCENCIO v GOVERNMENT INSURANCE OFFICE OF NSW (Clarke JA) 3 view Mr Levy is correct to point out that this is not so. In fact, there are references to the motor vehicle accident and headaches resulting from it which are contained in the doctor's notes. In my view, however, the learned trial judge was not suggesting that there may not have been references to the accident which may have led to confined complaints but was adverting to the factual situation that her major problems and her continuing problems were related not to the accident but to her domestic situation and problems with the father of her child. I do not think that this complaint demonstrates a mistake or justifies this Court in interfering with her Honour's judgment. Mr Levy also criticised the reliance on the complaints, or lack of complaints, made to Dr Subhas, pointing out that Dr Greenberg had been made aware of at least some of the pre-accident conditions. I do not think, however, that the trial judge had overlooked Dr Greenberg's evidence at this time. She was simply comparing the reliability of the complaints made by the appellant to both doctors. Again Mr Levy's complained that her Honour's conclusion that the appellant had failed to establish that the accident had affected her earning capacity is based on a narrow premise, that being that she did not return to work because there was no job for her. Her Honour had failed, Mr Levy argued, to give any weight to the expression of opinion by some of the doctors who saw her in 1986 that she was incapacitated and unable to perform work. Upon any evaluation of the totality of the evidence, the argument ran, the conclusion was not only open but ought to have been drawn that an economic incapacity had been shown. I am unable to accept this submission. Each of the doctors was expressing an opinion primarily upon the history given by the appellant and each of those opinions needed to be weighed against the views of other doctors to the effect that she was exaggerating, that there really was nothing wrong with her and that her claims should not be accepted without qualification. In circumstances where her credibility was very much in issue and the opinions depended upon the history given by the appellant I do not regard the criticism that her Honour applied a test which was too narrow as having any force. The ultimate conclusion to which her Honour came, which led to the assessment of damages, was that the appellant had suffered strain injuries to her cervical and thoracic spine and had some exacerbation of pre-existing headaches as a result of the accident. Her Honour thought, however, that those conditions did not interfere with her work capacity and that they lasted for only a relatively short time. In addition, her Honour thought that the appellant had suffered from ongoing emotional problems since 1979 and that these were related to domestic incidents and her relationship with men or, more particularly, with the father of her child. That view was not only open to her Honour but seems to me to have been the correct view. Her Honour did accept that her nervous condition had been aggravated by the accident, although she felt that it was very difficult to tell for how long that aggravation had continued. Insofar as the physical problems were relatively minor, her Honour appears to have rejected the notion that the emotional condition was secondary to the accident, in the sense that it was a reaction to the injuries sustained in the accident. 4 UNREPORTED JUDGMENTS Mr Levy complained that her Honour clearly did not allow sufficient, bearing in mind the exacerbation of the emotional condition, but he faced the difficulty that the onus lay on the appellant and she had failed to show by credible evidence that her aggravation had in fact continued for any length of time. When she saw Dr Subhas, that was in 1987, it would appear that her major problem was a continuation, possibly very severe, of problems which had long pre-dated the accident. In all the circumstances in my opinion her Honour dealt admirably with a very difficult case in which vague evidence was compounded by a conflict of medical evidence, and in the light of the fact that her Honour saw and was able to assess the appellant, I do not think it is open to this Court to interfere with any of the factual findings that she made and with her ultimate conclusion. In my opinion the appeal should be dismissed with costs. Meagher JA I agree. Handley JA I also agree. Clarke JA: The order of the Court will be that the appeal is dismissed with costs. Representation: Counsel for the Appellant: LA Levy Solicitors for the Appellant: McLaughlin and O' Riordan Counsel for the Respondent: GA Laughton Solicitors for the Respondent: GM Meadows, Solicitor for the GIO