McDONOUGH v GOVERNMENT INSURANCE OFFICE OF NSW SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL CLARKE JA, MEAGHER JA and HANDLEY JA 3 January 1993 [1993] NSWCA 176 DAMAGES — NO QUESTION OF PRINCIPLE Clarke JA. On Thursday 29 November 1990 Judge Shillington decided the case brought by the appellant in which she sued to recover damages in respect of injuries received by her on 21 September 1985 and their consequences. His Honour found that the appellant was entitled to a verdict and assessed damages in the amount of $22,317.65. That sum was made up as to $20,000 for general damages and as to $2,317.65 as out-of-pocket expenses, which were not in contest. The appellant has challenged that award asserting that it is inadequate and she has made particular complaints in relation to specific findings made by his Honour and, in one respect, the absence of a finding. The plaintiff's case at the trial was that shortly after the collision she felt pain principally in her neck, lower back, left hip, right knee and right toe. She asserted that those problems, particularly in the neck and the lower back, continued to the date of trial and were still in evidence then. She claimed economic loss both inrespect of earnings lost prior to the trial and an impairment of earning capacity in the future. His Honour pointed out that there were few objective signs and that the continuing problems which were alleged were of the soft tissue variety and his Honour observed that, in those circumstances, his assessment depended very much upon his view of her credibility and veracity. Having made that point his Honour expressed the opinion that the appellant had exaggerated her problems to a considerable extent when she reported to various doctors and later his Honour made it clear that he was unable to accept her as a reliable historian. The appellant challenges that conclusion by asserting that his Honour made mistakes which invalidate it but, putting to one side for the moment that particular challenge, it is to be observed that this Court is, in the absence of mistaken findings, in no position to make different findings on credibility. As it seems to me if his Honour's findings on credibility stand then there are great difficulties in the appeal. The challenges to the finding of credibility were put on two different bases. In the first place his Honour pointed out that the exaggeration which he thought had been demonstrated was evident in one respect when the appellant gave evidence. What his Honour was adverting to was her appearance in the witness box with an apparent marked restriction of movement in the neck. When this was coupled with an answer she gave that ever since the accident she had had problems and when one compared that with Dr Burniston's examination almost one year previously in which he noted a full range of neck movement his Honour detected a marked disparity. 2 UNREPORTED JUDGMENTS Mr Slowgrove, who appeared for the appellant at the trial and before this Court, submitted that this finding involved procedural unfairness and referred the court to its decision in Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304 in support of the submission. It is true that in the judgment ofthe learned President given in that case support is to be found for the proposition that is put by the appellant. Unfortunately, the views expressed by the learned President did not command the assent of the other members of the Bench. The majority took quite a different view and, in particular, at page 323 I expressed opinions which were somewhat inconsistent with the submission now put. His Honour was, of course, entitled to pay careful regard to the demeanour of the appellant and I do not think that in paying regard to the way she presented and comparing that with what had happened previously His Honour denied her procedural justice. In any event the matter recounted by his Honour was only one of a number of factors which led him to his conclusion on her general veracity. The second factual error asserted by Mr Slowgrove related to the evidence of Dr Carr. His Honour said that Dr Carr agreed that if there had been an early incident involving either the lower back or cervical spine it would be difficult, if not impossible, to separate out what was due to what. I accept the submission to the extent that it proceeds upon the basis that his Honour had misquoted, to a degree, what the doctor had said. At page 48 of the transcript the doctor was asked this question: Q. If lLask you to assume that she had prior neck problems and further that she'd had physiotherapy treatment for those as of April 1985 remembering that the accident occurred in September 1985, is it possible that some of her present neck problems stem not from the accident but from whatever she had wrong prior to the accident? A. Yes. The doctor's answer to the question was not surprising but it was not precisely in the terms set out by his Honour. Accepting that his Honour's recollection was not accurate, the question is — where does that take Mr Slowgrove? As I see it, it takes him nowhere because the difference between the two statements related only to the impossibility of separating out the causative effects of the accident in the light of the appellant's earlier problems. I certainly would not bedisposed to regard that inaccuracy as justifying this Court in reversing a trial judge's finding on credibility. Furthermore, as it seems to me, his Honour's ultimate conclusion was based upon the opinion of Dr Burniston given following the November 1989 consultation and, of course, his Honour was entitled to accept the doctor's view. What Dr Burniston said was: The soft tissue injury she sustained in her neck and lower back and probably left hip have slowly resolved with the assistance of the physiotherapy she has had. Upon an acceptance of that view and accepting, as his Honour did, that there had been problems from the accident for an indeterminate period, I do not think it can be said that the general damages were inadequate. In saying that I am not overlooking another submission made by Mr Slowgrove that his Honour was in error in that he failed to award damages for loss of enjoyment of life. It is true that his Honour did not specifically mention the interference with the appellant's life but it is fundamental to any assessment of general damages that that factor be taken into account and his Honour, being a very experienced judge, could URJ McDONOUGH v GOVERNMENT INSURANCE OFFICE OF NSW (Meagher JA) 3 hardly be assumed to have overlooked it. The fact that he specifically mentioned pain and suffering for an indeterminate period prior to assessing the general damages does not indicate, as was suggested, that he failed to recognise it. The final challenge was to the failure of his Honour to deal specifically with a claim which was said to have been made, and I accept was made, for economic loss in the past. The appellant returned to full time work in her employment with the Australian Customs Service in December 1985 following the accident. In January/February 1987 she fell pregnant and, in August of that year, she took maternity leave. She remained on that maternity leave for a lengthy period and possibly until her resignation from the Service in November 1988. I have said "possibly" because the evidence was not at all clear, although it supports the viewthat if she went back to work at all after taking maternity leave it was only for a very short time. In any event she resigned her position in November and Mr Slowgrove has said that she made a claim for economic loss from the date of resignation to the date of trial, which was a period of about two years. It is true that his Honour did not specifically deal with this and it may be that that was because he was not satisfied, on the balance of probabilities, that her condition had not settled down by that time. More likely, however, his Honour did not deal with it because counsel simply failed to prove it. Nowhere in the evidence was the appellant asked why she resigned. That seems to me to be absolutely fundamental to the claim and if the person who claims economic loss for a particular act of resignation does not herself attribute the resignation in direct terms to her disability, in whole or in part, it is difficult to see why the trial judge is bound to assume that she resigned partly because of her disabilities. More importantly, if she does not make the specific claim in her evidence, counsel for the opposing side will have no occasion to test the claim which, of course, has never been made. Mr Slowgrove seeks to meet the problem by pointing to a question he asked which related to the time of trial and which read: Q. Do you believe that you had that capacity when you left the Customs Service in August 1988? A. No I don't. However, on a matter as fundamental as the reason for leaving work, it seems to me that it is requisite for the party bearing the onus to do much more than to hint at the reason for taking that course and therefore provide some evidence on which a court might be asked to infer the reason while, deliberately or inadvertently, failing to provide direct evidence of it. If the failure to ask the relevant question is not regarded as being of great significance it at least gives rise to a situation in which opposing counsel would have been well advised to think twice before asking anyquestions about it. Certainly he had nothing to test because it had not been suggested to the court that the reason for the resignation was the appellant's inability to work resulted from the injuries, either partly or wholly. In my opinion the submission fails on two counts. First, counsel for the appellant failed to lead evidence which would support the claim and by "evidence" I mean critical evidence and, secondly, because on his Honour's finding accepting Dr Burniston's opinion, the court could not be satisfied that the appellant had discharged the onus of showing incapacity present in November 1988 which was causally related to the accident. For those reasons I am of the opinion the appeal should be dismissed with costs. Meagher JA. I agree. 4 UNREPORTED JUDGMENTS Handley JA. I also agree. Since the conclusion of the argument I have found some evidence in the appeal book in the course of the cross-examination of the appellant which would seem to indicate that she did not return to work with the Customs Service after she commenced to take her maternity leave but that she 5 used up all her accrued leave entitlements and only resigned when these had been exhausted. However, that information does not alter the views expressed by the learned presiding Judge, or my agreement with them. Clarke JA. The order of the Court is the appeal is dismissed with costs. 10 Orders accordingly. Counsel for the appellant: B SLOWGROVE Solicitors for the appellant: DENNIS and COMPANY Counsel for the respondent: G PETTY Solicitors for the respondent. G M MEADOWS: SOLICITOR FOR THE GOVERNMENT INSURANCE OFFICE OF NSW