CHAMI v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, MEAGHER and HANDLEY JJA 2 November 1993, 2 November 1993 [1993] NSWCA 55 DAMAGES — quantum — no question of principle. Handley JA This is an appeal by a plaintiff from a decision of Judge McCredie given on 10 September 1991. His Honour found a verdict for the plaintiff and awarded damages of $28,938. The plaintiff has appealed and has sought re assessment and a higher award: in particular, the plaintiff has challenged his Honour's allowance of $1,000 for past wage loss for the period immediately after the accident, and $20,000 for general damages. His Honour found that there was very little in the way of reliable objective signs of the injuries and disabilities of which the plaintiff complained. Accordingly, in his view - and in this respect his Honour must clearly be correct - the assessment of the plaintiff's damages depends, in broad terms, on his own credibility. The assessment of damages was complicated by the fact that the plaintiff, prior to the accident in question on 16 February 1987, had had a very chequered work history and had been off work for various periods due to a variety of other injuries. His Honour said that he was very unimpressed with the plaintiff's evidence and he did not accept his evidence that he had experienced major problems which were all due to this car accident. Immediately following the accident the plaintiff was admitted for observation to Sutherland Hospital where he remained for five hours. He had x rays of the skull and cervical and lumbar spine and his right knee. He was discharged with advice that he should take Codral Forte tablets for the pain and was given a certificate to be off work for a period of two weeks. His Honour expressed the view that this was a fair reflection of the extent of the plaintiffs real injuries as a result of this motor vehicle accident. The case although, on the plaintiff's claim, a major one involving substantial claims for wage loss, was fought on the evidence of the plaintiff alone. Both parties contented themselves with tendering a mass of reports from doctors. The high water mark of the plaintiff's case, both at the trial and on the appeal, was a report from Dr Kendall of 20 November 1990, this being the third of the reports from this doctor. He had ordered functional CT scans of the neck and lumbar spine after his second report and, in the light of the material obtained from those functional CT scans, the doctor expressed a view favourable to the plaintiff's case which, if accepted, would have resulted in a substantially increased award of damages. His opinion was summarised in the statement: "However, now we do know that real damage occurred (that is in this accident) and in the absence of a history of previous injury and with a patient only 37 at the time of injury and 40 nov, it is unlikely these changes would have occurred, as it were, spontaneously as part of a general degenerative process". 2 UNREPORTED JUDGMENTS Unfortunately for the plaintiff there was a history of prior injury which had not been communicated to Dr Kendall. The injuries, which were clearly proved, occurred while the plaintiff was employed at the State Rail Authority and appear to have been injuries to his right knee in 1981, following a fall, which led to an arthroscopy and a further accident in which he again injured his right knee in 1983 or 1984. These injuries, in themselves, do not directly relate to the cervical or lumbar spines, which are the areas where the plaintiff complains of damage following this motor vehicle accident in 1987. However, it appears that the plaintiff did have x rays to his spine taken in 1980 and in 1982. It seems that both these x rays were produced to the Court on subpoena by the State Rail Authority and they give rise to a clear inference that the plaintiff was complaining of problems in his lumbar and thoracic spine in 1980 and 1982 presumably as a consequence of the falls which led to the knee injuries reported by Dr Somerville in his report of 25 June 1990. It is clear, therefore, that there was a history of prior injury involving, or alleged to involve, the plaintiffs back and that there were earlier problems in 1980 and 1982 which led to the x rays in question and, in these circumstances, it seems to me that the opinion of Dr Kendall expressed in his report of 20 November 1990, on which the appellant so strongly relied, is substantially devalued. While the problems reported to Dr Kendall by Dr Plehwe, who took the functional CT scans in 1990, relate to levels in the lumbar spine which differed in some respects from those precisely reported in the 1980 and 1982 x rays, the 1980 x ray does refer to problems at L2/3 and L3/L4. Problems in the L3/LA and L3 area were identified by Dr Plehwe in his report of 22 October 1990. It is true, of course, that there is no earlier history of problems with the cervical spine recorded in the 1980 and 1982 x rays. Faced with markedly conflicting medical reports for the plaintiff and for the defendant and without the assistance of any oral evidence from any doctor, and, in particular, without the assistance of any oral evidence from the doctor who had the whole of the material before him, including the 1980 and 1982 x ray reports, his Honour preferred the evidence of the defendant's specialists, a number of whom had examined the plaintiff over a long period of time to those of the plaintiff's medical experts. In those circumstances where the trial judge has found against the party who bears the onus of proof and there is evidence to support that conclusion, it is very difficult for an appeal court to interfere with those findings. This is especially so in a case where so much of the medical evidence is necessarily dependent upon the reliability of the plaintiff as an accurate historian of his medical problems. His Honour, having taken the view that the plaintiff's claim had been grossly exaggerated, declined to find any damages in excess of the $28,938 he allowed and I have not been persuaded there was any error in his Honour's reasoning or approach which would entitle this Court to intervene. In my opinion, therefore, the appeal should be dismissed with costs. Clarke JA I agree. Meagher JA I agree. CLARKE JA: The order of the Court is appeal dismissed withcosts. Appeal dismissed with costs. Counsel for the Appellant: KJ KELLEHER (uM! v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Meagher JAB Instructed by: MICHAEL E BRADSTREET Counsel for the Respondent: G PETTY Instructed by: SOLICITOR FOR G.I.O. OF NEW SOUTH WALES