WBH INVESTMENTS PTY LID (TRADING AS BIG ROOSTER) v NASSIF SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, MAHONEY and CLARKE JJA 14 December 1993, 14 December 1993 [1993] NSWCA 284 Damages — Assessment based upon expert evidence Clarke JA This is an appeal against an award of damages in the amount of $85,000 by a jury. The trial was conducted before Judge Cooper and the jury in February 1991. Liability was admitted and the jury were required only to assess the damages. The injuries sustained by the respondent followed from a slipping incident in a retail fast food outlet conducted by the appellant and known as The Big Rooster. That incident occurred on 1 July 1986. The out of pocket expenses were agreed at $1,462.55. There was no claim for economic loss and consequently the balance of $83,500 approximately was awarded as general damages. The appellant has submitted that this award is beyond all reasonable bounds and it should be set aside. The appellant also, however, raises three distinct and discrete points which senior counsel, Mr Maconachie, described as errors, and it is convenient to deal with those matters first. Before coming to the detail of the points let me say that in my opinion they are utterly without substance. The first point is that expert evidence was given that was not based on proved facts. Accordingly, it was of no value and could not properly be relied upon. Ramsay v Watson (1961) 108 CLR 642 and Paric v John Holland (1985) 62 ALR 85 at 87 were relied upon. There is no doubt that an expert opinion based on a wrong factual basis or absent any foundation is of no probative value and cannot properly be relied upon but, on examination, the fundamental point is found wanting of support. The expert witness concerned was Dr P M Segelov, an orthopaedic surgeon who treated the respondent. He said that the respondent had ligamentous damage as a result of her accident in the left ankle. According to the submission made by Mr Maconachie the essential reason which led the doctor to that view was that the respondent gave a history that she was going over on her ankle and, the submission continued, the history was not borne out by her evidence. To the extent that the respondent did not say expressly that she went over on her ankle the submission is reasonably accurate but from thereon it loses all support. The doctor's evidence, which was given initially in examination, was subjected to some closer enquiry during cross-examination. In examination in chief the doctor said that the respondent's major problem was the ankle which showed some instability on the outer side. In the doctor's opinion it was more mobile because there was less support from the outer ligaments than there should have been. The doctor advised the respondent that she had torn the ligament structures of the ankle, that operative treatment was indicated if she continued to have problems, and the doctor discussed the nature of the operation with her. In cross-examination he was asked what led him to that view and he initially said, 2 UNREPORTED JUDGMENTS "The fact that she was going over on her ankle." This answer was then subjected to further examination leading to the following question and answer: "Q. In the case of absence, as you say, of a normal ankle on the right leg to compare it to are you not very dependent on what you are told by the patient that you were - A. No, I am more dependent on how that ankle ligament feels to me as an expert who has felt ankle ligaments for 30 years." My understanding of the doctor's answers, as they were finally revealed, was, while he had been alerted to the possibility that there was ligamentous instability by the respondent's complaint that she had been going over on the ankle, he had determined that was, in fact, the reality of the problem by his examination. That view of the doctor's evidence is supported by the trial Judge's directions in his summing-up. What Judge Cooper said was: "He felt there was damage to the left ankle which is due to some laxity of the ligaments in there and he said he picked that up by manipulation of the ankle." There was no request for a redirection on that point and the jury left the jury box to consider the verdict with that factual direction given by his Honour which accords with my reading of the evidence. For that reason I simply do not think the submission is accurate as it asserts that the opinion was based upon facts which were not proven. Even if, however, one were to disregard what I have said so far, there was the respondent's evidence in her cross-examination that she had explained to Dr Segelov what her feelings or problems were. That piece of evidence, when complemented by the doctor's evidence, would tend to render unsound the submission that there was no factual basis to be found in the evidence of the respondent for the doctor's opinion, even if it had been based solely upon what he had been told by the respondent. In my submission the first asserted error has not been made out. The second error was that expert evidence was given by Dr Segelov that the plaintiff's right leg was totally frail and useless and this was proved not to be the case rendering the expert opinion worthless. Now, it is true that Dr Segelov did say that the respondent had suffered from poliomyelitis from an early age and that her right leg was totally frail and useless. He said that in his evidence in chief and it is noteworthy that he said it in answer to a question inquiring as to his findings on examination. Accordingly, the answer should be read as an opinion expressed upon his physical examination. For that reason alone the submission seems to me to be insubstantial but, on further examination, the point is seen to be insupportable. I have already said that the submission puts forward the proposition that the doctor's expression of opinion was proved not to be the case. The proof, according to counsel for the appellant, lay in the respondent's evidence and the absence of any statement by her that her leg was totally frail and useless. What the respondent did say was that she had been wearing a calliper on her right leg ever since she could remember, but she did not wear it much around the house. In re-examination she was asked a question about the examination by Dr Burke and she responded, in part, by saying she had told Dr Burke "I am sorry Icannot move that leg, I have polio in it." Nowhere in either what the respondent said, or omitted to say, is there to be found proof that the doctor's expression of opinion was wrong. Even if there were evidence which tended to a contrary effect that is no reason why the jury could not have regard to the doctor's expression URNBH INVESTMENTS PTY LTD (TRADING AS BIG ROOSTER) v NASSIF (Clarke JA) 3 of opinion. Indeed in that event it would be a task for the jury to evaluate and weigh the conflicting evidence. That, however, does not seem to be the way this particular case was conducted for, if one again attends to the directions given by the trial Judge, one finds he referred to Dr Segelov's description saying: "That calliper holds her right leg stiff because as he (ie Dr Segelov) described it without support it just flails around." Again there was no application for a redirection and it seems to have been accepted that that was Dr Segelov's expression of opinion which the jury was entitled to consider. The foundation for the submission, that is that Dr Segelov's evidence was proved not to be the case, is erroneous and the submission should be rejected. The third suggested error is speculative in the extreme. The respondent made no claim under the principle expressed in Griffiths v Kirkemeyer in her particulars and did not seek to advance such a claim at the trial. Her counsel did not open such a claim, nor did he refer to it in closing address. There is no reference to any such claim in the trial Judge's summing-up. Nonetheless counsel for the appellant has submitted that the jury's verdict in this case was so high that some explanation must be found for it and that explanation is to be found in the possibility that the jury awarded some amount of damages to compensate the respondent for her need to receive from her husband regular domestic and other assistance. As I have said there was no mention of a possible claim of this nature during the trial and were the jury to have adopted this course it would have been acting totally contrary to the instructions of the trial Judge. There is no reason in my opinion why this Court should infer that the jury, in essence, threw the trial Judge's directions out the window and awarded sums by way of compensation for matters which had not been claimed. The appellant, however, has referred the Court to evidence given by the respondent's husband which was said to have been non-responsive. In that evidence the respondent's husband said that after the marriage, which occurred after the respondent's injury, he had had to reduce his jobs to just one job in order to assist his wife. He found she was having a lot of difficulty doing the domestic work and the cooking and that he was required to give a great deal of assistance in day to day tasks and in providing her with some type of physiotherapy treatment. That evidence was perfectly admissible as tending to indicate the limitations imposed on the respondent by the injury but does not provide any basis upon which this Court could speculate that the jury had improperly taken into account material contrary to the trial Judge's directions. This submission should also be rejected. That leads me to the one challenge which has caused me some concern and that is that the award was so large as to be beyond the bounds which could be awarded by a jury acting reasonably - Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41. In considering this submission I should not overlook the fact that I am obliged to approach the verdict upon the assumption that all relevant factual disputes were reasonably resolved by the jury in favour of the respondent - Metro Meat (Cootamundra) Ltd v Ricardo (New South Wales Court of Appeal, unreported, 2 November 1993). When the respondent fell she twisted the ankle of her left foot under her with the calliper hitting on to it with the consequence that the calliper dug into her hip and back and caused her right foot, that is the foot affected by the poliomyelitis, to become sore. She had pain in the ankle and in the knee, pain in the stomach, back, hips and arms. She was very bad until her marriage in August 1987 but then 4 UNREPORTED JUDGMENTS there was a degree of resolution. Her greatest problem is in her left ankle and, to a lesser degree, in the left knee. Of course these problems cause her more difficulty than they would cause a person who had a good right leg, but, because of her pre-existing disability, the impact of the accident upon her has been very much greater. The case is, in a way, an example of the egg shell skull principle. There is a possibility that she may have a need for an operation in the left ankle and possibly the left knee. Dr Segelov has already recommended an operation on the left ankle but she has declined to have it because she is fearful it may only make matters worse and Dr Segelov recognises that was a reasonable decision. She still has pain in her neck, head, arms and shoulders and, on occasions, she has very bad head aches and dizzy spells. Her walking is limited. She is, of course, still a young woman who was aged 32 at the date of trial. She is restricted with shopping she can do, and in her housework and has made a definite decision to put off having children because of her fears about her capacity or ability to manage. The evidence given by her husband in relation to the earlier point I discussed is quite telling on the degree of her limitations at the present time. She does have good days but, according to her husband, even on those she has problems at night. When she has bad days she is very markedly limited. Quite apart from the physical disability, and possibly to a degree because of the disabilities, she has become rather depressed and there has been a degree of personality change. All in all the accident has had a marked impact upon her life and is likely to go on having a great impact for the rest of her life. It is true that she has not sustained the serious degree of damage which leads to long periods of hospitalisation but, bearing in mind her age, the additional impact of the injuries she sustained upon her because of her pre-existing disability, the likely continuation of problems, the possibility of future operative treatment and her difficulties in managing generally it seems to me that, while the verdict is very high indeed, it cannot be said to be beyond the range which a jury, acting reasonably, could award. In these circumstances the appellant's submission should be rejected. Accordingly, the appellant has failed to sustain any of the points advanced with the consequence that the appeal should be dismissed with costs. Kirby P I agree. I would only add that, in a closing submission, the appellant submitted that the interest component of the judgment should be adjusted to take into account the decision of the High Court of Australia in MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657. By chance that case was decided by the High Court on 26 February 1991, the day on which the trial in this case started and the day before the jury returned with their verdict. It is, therefore, unsurprising that the point was not reserved at the trial. This Court has made it plain in a number of cases that it will not recalculate interest unless the point upheld in Gogic was determined adversely to an argument advanced at the trial or unless, for other reasons, the Court disturbs the judgment entered in the Court under appeal. As this Court will not, by virtue of the reasons given by Clarke JA, disturb that judgment, the Court is not called upon to recalculate the interest. For those reasons, which merely supplement the general reasons given by Clarke JA, I agree in the orders proposed. WABH INVESTMENTS PTY LTD (TRADING AS BIG ROOSTER) v NASSIF (Mahoney JAB Mahoney JA I agree with what has been said by Clarke JA and the additional remarks by the President. Kirby P: The appeal will be dismissed with costs. Representation: Counsel for the Appellant: J Maconachie QC and GM Gregg 10 Solicitors for the Appellant: Abbott Tout Russell Kennedy Counsel for the Respondent: P Biggins Solicitors for the Respondent: Brien and Associates203040